Millions of potential members could slip though payers' fingers should the Supreme Court overturn the individual mandate. The current health law means that an estimated 32 million newly insured will enter the system. If the individual mandate part of the law is overturned, it could mean insurers lose out on potential business.
During the second day of oral arguments on the health reform law before the Supreme Court, several of the justices, including swing voter Anthony Kennedy, grilled the Obama administration lawyers, expressing doubts about the constitutionality of the individual mandate.
Solicitor General Donald Verrilli Jr., who represented the Obama administration, argued that the mandate doesn't force people to participate in commerce because everyone is in the market at some point for healthcare services. He added that to address the inherent risk of unpredictable health emergencies, everyone should be required have health insurance, reported The Hill's Healthwatch.
However, Justice Kennedy appeared skeptical of Verrilli's reasoning, the Los Angeles Times reported. "The government is saying that the federal government has a duty to tell the individual citizen that it must act," he said. "And that changes the relationship of the federal government to the individual in the very fundamental way."
Kennedy also said the individual mandate is "concerning," adding that the federal government faced "a heavy burden of justification" in proving the individual mandate is constitutional, according to The New York Times.
Chief Justice John Roberts also questioned Verrilli's argument, saying the mandate forces people to buy health plans with benefits they might not use. "If I understand the law, the policies that you're requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance abuse treatment," Roberts said. "It seems to me that you cannot say that everybody is going to need substance abuse treatment or pediatric services, and yet that is part of what you require them to purchase."
But there's still a glimmer of hope for insurers. Kennedy--whose opinions are notoriously difficult to predict based on his questioning--said he recognized that the magnitude of the nation's healthcare problem requires a comprehensive solution, the Associated Press reported.
Perhaps even more interestingly, Roberts addressed the uniqueness of healthcare because everyone uses it at some point in their lives. "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," he said.
The Supreme Court is expected to announce a decision this summer.