By Daniel Weintraub
The health reform law passed by a Democratic Congress and President Obama two years ago appeared to be in more jeopardy than ever today after the last of three days of hearings at the US Supreme Court.
While Tuesday’s hearing left the impression that the court might vote narrowly to strike down a key part of the law — the mandate requiring individuals to buy insurance — supporters had hoped that the court would leave the rest of the law, or most of it, in tact.
But questions and comments form the justices today suggested that if the mandate goes, the rest of the law might go with it.
At a minimum, a provision requiring insurance companies to cover everyone without regard to pre-existing conditions and another limiting the variation in what insurers can charge young and older people would probably be jettisoned, if comments from even the liberal justices who support the mandate are any indication.
Beyond that, the conservatives on the court seemed troubled by the task of sifting through the Affordable Care Act’s 2700 pages to identify which provisions could stand on their own and which would have to be struck down because they were tied too closely to the mandate.
“The whole issue here is whether these related provisions have been legitimately enacted, or whether they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted,” said Justice Antonin Scalia, who appears to be the justice most hostile to the law.
And while attorneys for the government and some of the court’s liberal justices argued that Congress could decide what remaining parts of the law to keep and what to repeal, Scalia seemed to suggest that it would be better to strike down the entire law and let Congress start with a clean slate. Otherwise, he said, lawmakers would be left with orphaned provisions and parts of the law that never would have been enacted without the mandate.
“Don’t you think it’s unrealistic to say leave it to Congress, as though you’re sending it back to Congress for Congress to consider it dispassionately: On balance, should we have this provision or should we not have provision?” Scalia asked one of the lawyers. “That’s not what it’s going to be. It’s going to be these provisions are in effect; even though you — a lot of you never wanted them to be in effect, and you only voted for them because you wanted to get the heart of the — of the Act, which has now been cut out; but nonetheless these provisions are the law, and you have to get the votes to overturn them. That’s an enormously different question from whether you get the votes initially to put them into the law.”
Other justices countered Scalia, arguing that there were clearly parts of the law that were clearly constitutional and were not related to the question of whether Congress had the power to compel people to buy insurance.
Justice Ruth Bader Ginsburg cited provisions focused on Indian health care and Black Lung Disease, among others, that could easily remain in place even if the court struck down the heart of the federal reform.
“I mean, it’s a question of whether we say everything you did is no good, now start from scratch, or to say, you know, there are many things in here that have nothing to do, frankly, with the affordable healthcare, and there are some that we think it’s better to let Congress to decide whether it wants them in or out,” Ginsburg said to a lawyer for the states seeking to strike down the entire law. “So why should we say, it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”