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Court appears split by ideology over health care

Published March 29, 2012 7:21 am

After three days of arguments, a split court must now decide if insurance mandate is constitutional.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • Concluding three days of fervent, public disagreement, a Supreme Court seemingly split over ideology will now wrestle in private about whether to strike down key parts or even all of President Barack Obama's historic health care law. The justices' decision, due this June, will affect the way virtually every American receives and pays for care.

The court wrapped up public arguments Wednesday on the overhaul, which is designed to extend health insurance to most of the 50 million Americans now without it. The first and biggest issue the justices must decide is whether the centerpiece of the law, the requirement that nearly all Americans carry insurance or pay a penalty, is constitutional.

Wednesday's argument time was unusual in that it assumed a negative answer to that central question. What should happen to other provisions, the justices and lawyers debated, if the court strikes down the requirement? If the justices are following their normal practice, they had not even met to take a preliminary vote in the case before all argument concluded.

Questions at the court this week days showed a strong ideological division between the liberal justices who seem inclined to uphold the law in its entirety and the conservative justices whose skepticism about Congress' power to force people to buy insurance suggests deep trouble for the insurance requirement, and possibly the entire law.

The divide on the court reflects a similar split in public opinion about the law, which Congress approved two years ago when Democrats controlled both houses. The justices' decision is sure to become a significant part of this year's presidential and congressional election campaigns, in which Republicans have relentlessly attacked the law.

Both liberal and conservative justices appeared on Wednesday to accept the administration's argument that at least two important insurance changes are so closely tied to the must-have-coverage requirement that they could not survive without it: provisions requiring insurers to cover people regardless of their existing medical problems and limiting how much those companies can charge in premiums based on a person's age or health.

Less clear was whether the court would conclude the entire law, with its hundreds of unrelated provisions, would have to be cast aside.

The justices also spent part of the day considering a challenge by 26 states to the expansion of the federal-state Medicaid program for low-income Americans — an important feature which alone was expected to extend coverage to 15 million people and which no lower court has rejected.

Audio of Wednesday morning's argument can be found at: http://apne.ws/GX1p23 ; the afternoon argument at: http://apne.ws/GXdZOP .

Solicitor General Donald Verrilli Jr. took a few seconds at the end of the Medicaid argument to make a final plea for the court to uphold the entire law, which he said would "secure the blessings of liberty" for millions of Americans by providing them with affordable health care.

Verrilli told the court that Congress had made a policy decision to fight the high cost of medical care through the new law. "I would urge the court to respect that judgment," he said.

Paul Clement, the lawyer for the states challenging the law, retorted that it would be a strange definition of liberty to make people who may not want it buy health care insurance. And he called Congress' threat to cut all Medicaid funding from states that refuse to expand the program "a direct threat to our federalism."

Not since 2000, when the court resolved the Bush v. Gore dispute over Florida election returns that sealed George W. Bush's election as president has a Supreme Court case drawn so much attention.

In their questions Wednesday, liberal justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer took issue with Clement, who was asking that the Patient Protection and Affordable Care Act be tossed out in its entirety.

"What's wrong with leaving this in the hands of those who should be fixing this?" asked Sotomayor, referring to Congress.

Chief Justice John Roberts also spoke about parts of the law that "have nothing to do with any of the things we are" talking about.

For example, Ginsburg observed that the act deals with issues such as black lung disease.

"Why make Congress redo those?" she asked. "There are many things" that have "nothing to do with affordable health care."

But Clement said the court would be leaving "a hollow shell" if it decided to excise the several key provisions. "The rest of the law cannot stand," he contended.

Roberts and Justice Anthony Kennedy also asked hard questions of Deputy Solicitor General Edwin Kneedler that indicated they are at least considering Clement's arguments. Kneedler said that the only other provisions the court should kill in the event the mandate is stricken are the two that bar refusing coverage to sick people and limiting the charges to old or sick people.

Justice Antonin Scalia suggested many members of Congress might not have voted for the bill without the central provisions, and he said the court should not go through each and every page to sort out what stays and what goes.

"What happened to the Eighth Amendment?" Scalia asked, referring to the Constitution's ban on cruel and unusual punishment. "You really expect us to go through 2,700 pages?"

In the afternoon arguments, the liberal justices made clear they would vote to uphold the Medicaid expansion, for which the federal government would pay almost all the costs.

Justices Sotomayor, Kagan, Ginsburg and Breyer voiced strong disagreement with the states' contention that the expansion of the joint state-federal program would be unconstitutionally coercive.

"Why is a big gift from the federal government a matter of coercion?" Kagan asked.

Even Roberts joined his liberal colleagues in questioning Clement about the states' argument that that the expansion comes with too many strings.

"Well, why isn't that a consequence of how willing they have been since the New Deal to take the federal government's money? And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done, they should not be surprised that the federal government having attached the — they tied the strings, they shouldn't be surprised if the federal government isn't going to start pulling them," Roberts said.

A colorful assembly of demonstrators sounded off pro and con outside the marble court building all three days, though Wednesday's crowd was the smallest.

Supporters of the law held a morning news conference to stress the importance of Medicaid. And, marching on the sidewalk outside the court, they repeated chants they had used the previous two days, including "Ho, ho, hey, hey, Obamacare is here to stay." Most of their group departed not long after arguments began inside.

Opponents of the law, including Susan Clark of Santa Monica, Calif., also stood outside the court. Clark, who was wearing a three-cornered colonial-style hat, carried a sign that read "Obamacare a disaster in every way!"

"Freedom, yes. Obamacare, no," other opponents chanted. Day 3 highlights

The fate of President Barack Obama's health care law appears to rest precariously in the hands of two justices.

After three days of Supreme Court arguments, the questions justices asked the lawyers are the only tea leaves to read, however unreliable. Justice Anthony Kennedy's mixed queries left the most room for him to be seen as a possible swing vote to decide the issue. Chief Justice John Roberts also spoke up for both sides of the issue at times.

The four Democratic-appointed justices seemed to champion the law. If they all support it, at least one of the court's five Republican appointees would still be needed to uphold the law.

Two of them, Justices Antonin Scalia and Samuel Alito, sounded hostile, while a third, Justice Clarence Thomas, remained silent but is presumed likely to find it unconstitutional based on past opinions.

The two other Republican appointees may be the key. Roberts expressed skepticism that Congress has the power to require Americans to carry health insurance or pay a fine. But he also sometimes reiterated Obama administration arguments, leaving a murkier impression overall than the other conservatives.

Kennedy was hardest to read. He said the insurance mandate was "changing the relation of the individual to the government." Justifying that is a "heavy burden," he warned.

But Kennedy also indicated openness to the argument that the health insurance market is unique, so telling Americans they have to carry insurance isn't like forcing them to buy other products. Young people who forgo insurance — "that person who is sitting at home in his or her living room doing nothing" — are contributing to the price of others' coverage because they might require treatment and if they aren't insured, the costs of that treatment get passed on to other Americans in taxes and higher insurance premiums.

The court's liberals — Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — said little to shake expectations.