Written by Lisa Esposito

Updated on March 28, 2012

WEDNESDAY, March 28, 2012 (HealthDay News) -- On the last of three days of legal arguments over the nation's controversial 2010 law that reformed health care, Supreme Court justices debated Wednesday whether a key provision of the legislation could be ruled unconstitutional without invalidating the entire law.

The discussions focused once again on the same pivotal piece of the law that occupied most of Tuesday's debate -- whether the federal government can require adult Americans to purchase health insurance or face a penalty for not doing so. As many as five of the nine justices expressed varying degrees of doubt Tuesday about the constitutionality of that requirement -- sometimes referred to as the individual mandate.

"My approach would be to say that if you take the heart out of this statute, the statute's gone," Justice Antonin Scalia, one of the court's leading conservatives, said Wednesday, The New York Times reported.

Some of the other justices weren't prepared to go that far Wednesday, the Times reported, but they seemed to agree that striking down the individual mandate would basically gut the law.

If the mandate were ruled unconstitutional, Justice Ruth Bader Ginsburg, a liberal jurist, said the court would be left with a choice between "a wrecking operation" and "a salvage job," the newspaper said.

Opponents of the law -- including 26 states that contested the constitutionality of the legislation, resulting in the Supreme Court review -- contend that Congress exceeded its authority with the individual mandate.

The law's supporters argue that without the requirement that people have insurance coverage while they're healthy, there won't be enough money in the risk pool to pay to take care of them when the need for health care eventually -- and inevitably -- arises.

The individual mandate -- scheduled to take effect in January 2014 -- is arguably the key component of the law.

Critics of the law have said that provisions of the legislation are too intertwined for the law to stand without the individual mandate. The Obama administration has said the law can still work without the mandate, but provisions such as prohibiting insurance companies from denying coverage to people with preexisting conditions would be greatly compromised without the mandate.

The Patient Protection and Affordable Care Act is the most ambitious government health-care initiative since the Medicare and Medicaid programs of the 1960s. It's also the legislative cornerstone of President Barack Obama's presidency, and the first federal effort to rein in health-care costs. It aims to extend insurance coverage to more than 30 million Americans through an expansion of Medicaid and the provision that people buy health insurance starting in 2014 or face a penalty.

Medicaid expansion also scrutinized

The Supreme Court justices also spent part of Wednesday considering a challenge by the 26 states to the Affordable Care Act's expansion of Medicaid, the government-run insurance program for low-income Americans. An estimated 15 million Americans would gain insurance coverage under the expansion of Medicaid.

The court's liberal justices gave every indication they were prepared to uphold the Medicaid expansion, with Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer expressing strong disagreement with the states' contention that expanding the scope of the joint state-federal program was a coercive maneuver that violated the Constitution, the Associated Press reported.

"Why is a big gift from the federal government a matter of coercion?" Kagan asked. The law calls for the federal government to fund 90 percent of the expansion for 10 years.

But the court's more conservative justices suggested that Medicaid expansion was coercive to states, the Times reported.

On Tuesday, the court's four conservative justices appeared opposed to the mandate requiring most adults to have insurance or pay a penalty, with several questioning whether the mandate falls under the federal government's constitutional powers. Four liberal justices seemed to come out in its favor.

Justice Anthony M. Kennedy, considered a swing vote, also seemed critical of the mandate. He suggested that the health-care law assigns the federal government regulatory powers over interstate commerce that exceed those previously supported by the court, the Washington Post reported.

"Can you create commerce in order to regulate it?" he asked.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito, both considered conservatives, compared forcing Americans to buy health insurance to compelling them to purchase commodities such as cellphones or burial services, respectively.

Budget office sees savings; opponents skeptical

Here's how the health-reform law is designed to provide health insurance to uninsured Americans:

  • Individual mandate. It requires most adults to purchase health insurance or pay a penalty. By 2016, the phased-in penalty will reach either $695 or 2.5 percent of yearly taxable income, whichever is greater. People with incomes below tax-filing thresholds will be exempt from the provision. Up to 16 million people are projected to join the rolls of the insured under the mandate.
  • Medicaid expansion. This would increase eligibility to all people under age 65 with annual incomes up to 133 percent of the federal poverty level -- about $14,850 for a single adult and $30,650 for a family of four in 2012. Non-disabled adults under 65 without dependent children were previously ineligible. Another 16 million people are estimated to gain insurance under the expansion.
  • State-run insurance exchanges. They will be created to help small businesses and individuals purchase insurance through a more organized and competitive market.

In February 2011, the Congressional Budget Office estimated that savings from the Affordable Care Act would cut the federal deficit by $210 billion during the next decade.

But opponents say that the cost-cutting provisions probably won't work.

Devon Herrick, a health economist at the free-market National Center for Policy Analysis, said the law sets up a "slippery slope" that will increase costs, not lower them.

"If Congress and company have the legal authority to decide the minimum coverage you must have, all manner of lobbyists and special interests and providers for specific diseases will descend on Washington and state capitals, as they always have, to make sure that their respective services are covered by that mandate," Herrick said.

The law's supporters argue that without the requirement that people have insurance coverage while they're healthy, there won't be enough money to pay for the nation's health insurance needs.

"If people don't feel like paying, then get sick and go to the emergency room or the hospital, those people's costs will be added on to our insurance bills as they are today, which makes it much more expensive," said John Rother, president of the National Coalition on Health Care, which works to achieve reform of the U.S. health-care system.

The Affordable Care Act has been controversial since it was passed by Congress and signed by Obama in March 2010. Poll after poll has found that Americans don't like the individual mandate. But a recent Harris Interactive/HealthDay poll revealed that people are starting to warm up to certain key provisions of the law -- such as the ban on insurance companies turning away applicants with preexisting health problems.

Some popular provisions -- including allowing children to stay on their parents' health plans until age 26 -- are already in place.

Other provisions meant to help older Americans began in 2011, with changes to continue through 2020.

The Supreme Court ruling is expected in June. The court could go one of several ways:

  • It could rule the individual mandate is unconstitutional and the entire law invalid.
  • It could rule the mandate is constitutional and the entire law can stand.
  • It could reach a middle ground: that the individual mandate is unconstitutional but the rest of the law can stand.
  • It could decline to rule on the case and the health reforms would proceed.

More information

The American Bar Association website links to briefs filed with the U.S. Supreme Court case on the Affordable Care Act.

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