Supreme Court grills government on individual mandate

In Supreme Court arguments yesterday, both sides got to argue the issue that's at the very heart of the healthcare reform debate: Can the government force Americans to buy health insurance? And is the healthcare industry different than other forms of commerce--or is buying health insurance more like buying broccoli?

Some say the majority of the justices are leaning toward broccoli.

The 26 states challenging the law say the "individual mandate" provision of the Affordable Care Act is an unprecedented attempt to compel individuals to engage in commerce in order to more effectively regulate it.

The Obama administration counters that Congress is regulating existing commerce--participation in the healthcare market--and is doing so in order to deal with existing effects--namely the fact that insured individuals end up paying for the care of the uninsured.

But the justices questioned whether healthcare really is different than other forms of commerce.

Is healthcare like broccoli?
"You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing healthcare consumption and covering universal risks," Chief Justice John Roberts said to U.S. Solicitor General Donald B. Verrilli Jr., who argued on behalf of the government at the start of Tuesday's session. 

"Well, a car or broccoli aren't purchased for their own sake, either. They are purchased for the sake of transportation or in [the case of] in broccoli, covering the need for food," Roberts said.

Justice Ruth Bader Ginsburg noted that people who don't participate in the health insurance market are making it much more expensive for those that do in the form of higher premiums. "It's not ... your free choice just to do something for yourself. What you do is going to affect others [in] a major way."

But Justice Antonin Scalia saw it another way. "You could say that about buying a car," he said. "If people don't buy cars, the price that [car buyers] pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car."

Verrilli repeatedly countered that the healthcare market is unique because no one can predict what services they will need and when.

Will health care reform endanger emergency room patients?
Other questions revolved around whether or not the mandate has any teeth and the repercussions for those who refuse to buy insurance.

For example, the justices wanted to know if individuals do not have health insurance in 2014 and do not pay the penalty on their 2015 tax form, what consequences, if any, do they face?

Attorneys arguing on behalf of the Obama administration said the government isn't going to arrest anyone or file tax evasion charges if they don't pay up in 2015 and beyond.

Other justices had some "what if?" scenarios. For example, if an uninsured patient comes into an emergency room, can the hospital require that they sign up for it as a condition of getting treatment?

"What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance," Justice Sonia Sotomayor asked. "[For example if the child] had an allergic reaction and a simple shot would have saved the child? ...Do you think there's a large percentage of the American population who would stand for the death of that child?"

Michael Carvin, representing the National Federation of Independent Business, defended not only the individual mandate but also hospitals and physicians in his response.

"One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people ... could get thrown out of emergency rooms, or that this alternative that they've hypothesized is going to be enforced by throwing people out of emergency rooms," he said.

"This alternative; i.e. conditioned access to healthcare on buying health insurance, is enforced in precisely the same way that the Act does. You either buy health insurance or you pay a penalty of $695. You don't have doctors throwing people out on the street."

How will the Supreme Court rule on the individual mandate?
Although it's rarely a good idea to try to predict what the Supreme Court will do--the justices are adept at playing devil's advocate--the media, including two experienced Supreme Court reporters, are doing just that.

"The individual mandate is in trouble--significant trouble," Lyle Denniston said in an audio report posted on SCOTUSblog. "It's too early to tell whether it will be struck down, but the court's four conservative members ... who asked questions were quite skeptical."

As for the left, NPR's Supreme Court reporter, Nina Tottenburg, said in an interview outside the courtroom that all four liberal members of the court are "clearly" going to vote in favor of the individual mandate, according to NPR's Shots blog.

"The government had a hard time, and if they win, they win narrowly, she said, adding "I don't think you can call this."

The best hope for a fifth or sixth vote in favor, Denniston added on his post, may be from Chief Justice John G. Roberts or Justice Samuel A. Alito Jr., who asked hard questions of the government, but did not appear to be dismissive of the statute's constitutionality.

Other reporters jumped on the "individual mandate doomed" train--this morning's headlines and teasers included Huff Post's "End of Affordable Care Act?" and Slate's "SCOTUS hearing a 'train wreck' for Obama administration."

But more traditional outlets stuck to reporting it straight, including The Washington Post, which not-so-boldly declared: "Supreme Court turns to key constitutional issue in health-care law." But even the Post couldn't resist a more suggestive headline on the article's second page: "Supreme Court expresses doubts on key constitutional issue in health-care law."

There were two final hearings today. In a 90-minute session, the court heard severability arguments--if the court strikes down one part of the law, such as the individual mandate, does that kill healthcare reform? If not, are there other parts that are inextricably linked that would have to be struck down as well?

In a second session, the court heard arguments on requiring states to expand their Medicaid programs.

To learn more:
- listen to an audio recording of yesterday's oral arguments or read the transcript (.pdf) of yesterday's session
- see the docket that lists all the ACA cases currently before the court, including case filings
- read the Washington Post coverage
- check out NPR's Shots blog post
- listen to the audio report posted on SCOTUSblog
- hear the audio recording or read the transcript (.pdf) of the Wednesday sessions