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Dr. Sonia Nagda puts on a pin supporting the health care reform law signed by President Obama as she gathers with other health care professionals in front of the Supreme Court in Washington, Monday, March 26, 2012, as the court begins three days of arguments on the health care. (AP Photo/Charles Dharapak)
Health law seen in jeopardy after Supreme Court arguments
First Published Mar 27 2012 11:40 am • Last Updated Mar 27 2012 06:42 pm

Washington • The fate of President Barack Obama’s health care overhaul was cast into deeper jeopardy Tuesday as the Supreme Court’s conservative justices sharply and repeatedly questioned its core requirement that virtually every American carry insurance. The court will now take up whether any remnant of the historic law can survive if that linchpin fails.

The justices’ questions in Tuesday’s hearing carried deeply serious implications but were sometimes flavored with fanciful suggestions. If the government can force people to buy health insurance, justices wanted to know, can it require people to buy burial insurance? Cellphones? Broccoli?

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Washington » It boiled down to a debate over broccoli. And bread. And burial plots. If government can tell people to buy health insurance, Supreme Court justices wanted to know, what else could it make them buy?

Throughout Tuesday’s hearing on the health care law, the justices and lawyers argued about the perfect product to illustrate the limits of the federal government’s power over interstate markets.

“Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli,” offered Justice Antonin Scalia, obviously resistant to expanding government’s reach.

“That’s quite different,” responded Solicitor General Donald Verrilli, arguing for the health insurance mandate. Unlike grocery shopping, medical care is a market “in which your participation is often unpredictable and often involuntary.” And the care of patients who don’t pay gets passed on to everyone else as higher taxes and insurance premiums.

Verrilli preferred his own examples: the law is like regulation of telephone rates or price supports for milk.

And so it went.

» How about mandatory burial insurance, ventured conservative Justice Samuel Alito. “Everybody is going to be buried or cremated at some point. What’s the difference?”

» Chief Justice John Roberts wanted to know if people could be forced to buy cellphones for 911 calls.

» Attorney Paul Clement, representing 26 states challenging the law, tried wheat. When Congress wants to help farmers, he said, it doesn’t “just make everybody in America buy 10 loaves of bread.”

But Roberts, seeming to tire of the parade of products, cut him off by saying that doesn’t address the government’s argument — that everybody needs health care “and all they’re regulating is how you pay for it.”

The Associated Press

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The law, pushed to passage by Obama and congressional Democrats two years ago, would affect nearly all Americans and extend insurance coverage to 30 million people who now lack it. Republicans are strongly opposed, including the presidential contenders now campaigning for the chance to challenge Obama in November.

Audio for Tuesday’s court argument can be found at: http://apne.ws/Hft6z3 .

The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Anthony Kennedy.

But Kennedy, who is often the swing vote on cases that divide the justices along ideological lines, also said he recognized the magnitude of the nation’s health care problems and seemed to suggest they would require a comprehensive solution.

He and Chief Justice John Roberts emerged as the apparent pivotal votes in the court’s decision. The ruling is due in June in the midst of a presidential election campaign that has focused in part on the new law.

Though many of the justices asked tough questions and made strong statements, past cases have shown that those don’t necessarily translate into votes when it comes time for a decision.

Wednesday’s final arguments — the third day in the unusually long series of hearings — will focus on whether the rest of the law can remain even if the insurance mandate is struck down and, separately, on the constitutionality of another provision expanding the federal-state Medicaid program.

The insurance requirement is intended to complement two unchallenged provisions of the law that require insurers to cover people regardless of existing medical conditions and limit how much they can charge in premiums based on a person’s age or health.


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The law envisions that insurers will be able to accommodate older and sicker people without facing financial ruin because the insurance requirement will provide insurance companies with more premiums from healthy people to cover the increased costs of care.

The biggest issue, to which the justices returned repeatedly during two hours of arguments in a packed courtroom, was whether the government can force people to buy insurance.

"Purchase insurance in this case, something else in the next case," Roberts said.

"If the government can do this, what else can it not do?" Justice Antonin Scalia asked. He and Justice Samuel Alito appeared likely to join with Justice Clarence Thomas, the only justice to ask no questions, to vote to strike down the key provision of the overhaul. The four Democratic appointees seemed ready to vote to uphold it.

Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and U.S. citizens.

"Do you not have a heavy burden of justification to show authorization under the Constitution" for the individual mandate? asked Kennedy.

At another point, however, he also acknowledged the complexity of resolving the issue of paying for America’s health care needs.

"I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case," Kennedy said.

Roberts also spoke about the uniqueness of health care, which almost everyone uses at some point.

"Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it," Roberts said, paraphrasing the government’s argument.

Solicitor General Donald Verrilli Jr. sought to assure the court that the insurance mandate in the Patient Protection and Affordable Care Act that Obama signed into law in 2009 is a key part of the law’s goal of reaching many of the more than 40 million people who don’t have health insurance through their employers, don’t qualify for government aid and cannot afford to buy coverage on their own.

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