U.S. Supreme Court justices dissected a tax law for 90 minutes, March 26, the first day of deliberation to determine whether or not it should interfere with their ability to rule on the constitutionality of health reform in one of the most significant cases in the court’s history.
The law hinges on whether Congress has the power to penalize citizens required to obtain health insurance in 2014 under President Obama’s health reform plan. Nearly everyone would have medical coverage under the plan, known as the Affordable Care Act (ACA), including the 50 million uninsured—19 percent of whom are African Americans.
Medicaid would be expanded to cover uninsured adults, and those who can pay would maintain coverage under existing employer plans or obtain subsidized insurance through state exchanges. Those who can pay, but don’t would be subject to a penalty when they filed their federal income tax returns in 2015.
Today’s hearing focused on the Anti-Injunction Act, which bans people from challenging a federal tax before it’s collected. Much of the argument was mired in discussions on technicalities and language. (Is it a tax, a penalty or a tax penalty?)
Both opponents and supporters of health reform have said the act should not apply and that the case should go forward.
“The minimum coverage provision of the Affordable Care Act is an exercise of Congress’ taxing power as well as its commerce power,” said U.S. Solicitor General Donald B. Verrilli Jr. on behalf of the Obama Administration.
Gregory G. Katsas represented the 26 states and private parties that are challenging what they derisively call “Obama care.”
“The purpose of this lawsuit is to challenge a requirement — a federal requirement to buy health insurance,” Katsas argued. “That requirement itself is not a tax. And for that reason alone, we think the Anti-Injunction Act doesn't apply.
The Supreme Court also appointed an independent Washington attorney and former U.S. solicitor general, Robert A. Long, to argue the merits of the tax law. “Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation,” Chief Justice Roberts said. “You have ably carried out that responsibility, for which the court is grateful.”
U.S. Rep. Donna M. Christensen, D-Virgin Islands, who is also a physician and member of the Congressional Black Caucus, is cautiously optimistic about the future of health reform.
“It’s hard to say what the court will decide on this,” said Christensen as she left the courtroom, which was packed with other Congressional representatives, lawyers, health policymakers.
“I’m hopeful that the court will find that the Anti-Injunction Act does not apply, if for no other reason, than that we need clarity and continuity in program and system development for implementing the ACA,” said Alfred Chiplin Jr., managing attorney at the Center for Medicare Advocacy in Washington, D.C.
“Planners at the state and federal level need some solid ground for going forward with implementing the complicated rules for health exchanges; insurance companies to clarify and certainly in building products and markets based on exchange rules that are reasonably reliable and certain.”
Outside the Supreme Court, demonstrators from coast to coast filled the sidewalk, including Republicans wearing Tea Party Patriot T-shirts, doctors in white lab coats and college students in trademark hoodies. Dueling messages – “Repeal Obama Care” versus “Catholics for Healthcare Reform. Protect the Law”- shouted from bobbing signs.
A religious group sang “We Shall Overcome.” A crowd gathered to watch Republican presidential candidate Rick Santorum pull off in a taupe SUV.
And some of the 350 members of the U.S. Students Association took a break from their educational and financial aid lobbying to visit Supreme Court in support of health reform.
Kamilah Moore, 19, of UCLA, is relieved that she can stay on her mother’s insurance plan until she’s 26. A fellow student, Stephanie Suarez, 20, is grateful that her family has insurance, but says her father’s dental and vision benefits have been cut. She remembered several classmates who received dental care for the first time in college.
Another UCLA student, Maryssa Hall, 19, is covered through her school’s health plan, but her mother works part time and is uninsured. She and her siblings have been on Medi-Cal, the state Medicaid program in California, at various points, but not always at the same time. The one who is usually uninsured is the one who happens to need hospitalization, she said, recalling a $5,000 bill for her eight-year-old sister who had an asthma attack.
The Supreme Court is hearing six hours of testimony today through Wednesday—the most since the mid-sixties. Tuesday is considered the key day, with arguments focusing on the individual responsibility provision. On Wednesday, the court will hear arguments on whether the rest of the law can be separated from this provision, an issue known as “severability.” Another key topic is whether states are being coerced into expanding Medicaid.
The Medicaid expansion would help to ease health and health-care disparities, which disproportionately affect African Americans. “For blacks, Asians, Hispanics and poor populations, at least half of the core measures used to track access are not improving,” the U.S. Dept. of Health and Human Services indicated in its National Healthcare Disparities Report, released in 2008. “The problem of persistent uninsurance is a major barrier to reducing disparities.”
Uninsured people tend to be in worse health and are less likely to receive preventive or ongoing care, especially for chronic conditions. The ranks of the uninsured have grown with the rising unemployment rate and cutbacks on coverage for those who have jobs.
From 1968 to 1980, the majority of Americans under 65 had some type of private insurance. As more and more companies began to cut back on coverage, those with insurance fell from 79 percent to 67 percent in 2007, according to a half-century analysis by the National Center for Health Statistics. Employer-sponsored coverage dropped from 71 percent to 62 percent during this period. It’s now at 57 percent, the Kaiser Commission reports.