Supreme Court debates health care without individual mandate

As hearings at the Supreme Court moved into the third and final day of arguments on the Affordable Care Act (ACA) on Wednesday, the justices prepared to weigh whether other provisions in President Barack Obama's health care law could be preserved even if the individual mandate were struck down, according to The Washington Post.

On Tuesday, the high court heard arguments regarding the constitutionality of the individual mandate, a provision in the ACA that would compel individuals to buy health insurance in order to spread the cost of health care among a larger group of individuals. If someone failed to procure health care, he or she would then face a penalty fee.

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The conservative justices on the bench grilled Solicitor General Donald Verrilli, who was representing the Obama administration's health care law. Justice Ruth Bader Ginsburg confirmed with Verrilli: "I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do; that is… a good number of them will get services that they can't afford at the point where they need them, and the result is that everybody else's premiums get raised."

When Verrilli agreed and said the individual mandate was designed to regulate economic activity which already existed, Justice Antonin Scalia shot back, "If people don't buy cars, the price that those who do buy cars 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."

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Justice Anthony Kennedy, who occupies the ideological middle ground in the Supreme Court, said that by compelling a citizen to act, the individual mandate "changes the relationship of the federal government to the individual in the very fundamental way."

The question on Wednesday was whether the rest of the ACA should stand if the individual mandate falls, a situation that seems increasingly likely after the tone of Tuesday's hearing. Politico said the liberal justices were leaning towards letting the law stand even if the mandate fell, while Chief Justice John Roberts questioned whether the other provisions could stand without the mandate.

The issue, which has been dubbed "severability," brings up the question of whether the insurers will still be forbidden from refusing health care coverage or charging higher premiums to people with pre-existing conditions, two provisions which would become difficult to support without the individual mandate, according to Bloomberg.

The Associated Press indicated that some of the justices seemed receptive to the idea of saving portions of the law, with Justice Sonia Sotomayor saying, "What's wrong with leaving this in the hands of those who should be fixing this?" in reference to Congress.

In the latter half of the day, the court was scheduled to decide whether it is constitutional to compel states to expand Medicaid to include more economically disadvantaged Americans, said the AP.

As of mid-Wednesday, court watchers expected the Supreme Court to split between Democratic and Republican appointees, with Republican appointees in favor of ruling the individual mandate unconstitutional. However, it seems likely that portions of the ACA will be preserved as justices questioned the logic of declaring the entire act unconstitutional, said The Washington Post.

Whatever the outcome may be, both liberal and conservative justices on the panel left it up to Congress, with conservative Scalia saying, "One way or another, Congress is going to have to reconsider this," and liberal Ginsberg saying, "If Congress doesn't want the provisions that are not infected to stand, Congress can take care of it," according to Politico.

The problem is, the Democrats no longer have the numbers to push forward legislation on health care, and the Republicans have no desire to, said Politico.

Sen. John Kerry (D-Mass.) said, "It depends entirely on what the ruling is, what’s in and what’s out, and you have to wait until then to see what you’re left with and what you have. There are discussions — quietly — among some people about ‘what if’s.’ But there is no overall plan in place because I think people have confidence the court will do the right thing."

The White House meanwhile expressed confidence that the health care reform law would be upheald, with White House spokesman Josh Earnest saying, "Anybody who believes that you can try to predict the outcome of a Supreme Court case based solely on the questions of the justices is not a very good student of the Supreme Court," according to USA TODAY. He also pointed out that the individual mandate was initially championed by conservative Republicans.

The decision will be handed down in June, likely having a large impact on the presidential election campaign.

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