Supreme Court greets healthcare mandate with skepticism

WASHINGTON — The legal fate of President Obama's embattled healthcare law has always turned on winning over the center of the Supreme Court: JusticeAnthony M. Kennedy.

But as the court considered whether the federal government could require most Americans to get health insurance, Kennedy appeared to deal the president and his allies a heavy blow.

The mandate, he said, "changes the relationship of the federal government to the individual in a very fundamental way." Kennedy called the insurance requirement "concerning" and suggested it might be "unprecedented."

Predicting decisions based on justices' comments during arguments can be risky. And on the second day of oral arguments over the landmark law, Kennedy and Chief JusticeJohn G. Roberts Jr.at times seemed to agree with the government's view that because everyone is likely to need medical care at some time, Congress might have more latitude to require purchase of insurance than of some other product.

But those moments were exceptions. Overall, the clear skepticism about the insurance mandate expressed by Roberts and Kennedy seemed to set the stage for a 5-4 decision, with the court's five Republican appointees pitted against its four Democrats.

Such a ruling would strike out the heart of Obama's healthcare law, his signature domestic achievement, in the middle of the presidential campaign, which could become a significant, and unpredictable, factor in the election. Not since the mid-1930s has the Supreme Court struck down a major regulatory act of Congress.

A ruling against the mandate would not necessarily overturn all of the healthcare law. The question of how much might be left is one the justices will grapple with in Wednesday's arguments, the finale of three days of debate over the law. But on Tuesday, at least, the administration's supporters were dispirited.

"It certainly didn't go as well as I had hoped it would for the government," said Timothy Jost, a law professor at Washington and Lee University and an authority on healthcare law. "It was always fairly certain they had four votes. It's clear now they are going to have a hard time pulling a fifth."

Kennedy and Roberts, along with fellow conservative Justices Antonin Scalia and Samuel A. Alito Jr., repeatedly questioned where the limit on federal power would be if the mandate was upheld. Justice Clarence Thomas was silent, as is his habit, but is expected to vote to strike down the mandate.

"If the government can do this, what else can it … do?" Scalia asked, suggesting Congress might require Americans to buy broccoli or automobiles.

Roberts suggested that the government might require Americans to buy cellphones to be ready for emergencies.

Kennedy, who is often the court's swing vote, seemed to suggest that a mandate directed at individuals could be upheld only if the government offered an extremely powerful justification. And his comments from the bench raised considerable doubt about whether he thought the administration had met that test.

Solicitor Gen. Donald Verrilli Jr., the Obama administration's top lawyer, tried to argue that the insurance mandate would not open the door to other requirements to buy products because healthcare is unique.

"Virtually everybody in society is in this market," said Verrilli, who appeared to struggle to answer conservative justices' probing questions. Justice Ruth Bader Ginsburg and other liberal justices intervened at points to help him along, defending the new law as a reasonable means to cope with the uninsured.

From the start, the mandate to buy insurance has been seen as the central and most controversial provision in the Patient Protection and Affordable Care Act. It is by far the one most Americans say they oppose, according to polls.

Under the law, many of the nearly 20% of individuals in the U.S. who do not have health insurance will have to sign up for a plan starting in 2014 that meets a basic set of standards or pay a tax penalty that will rise from $95 in 2014 to $695 in 2016. Health policy experts warn that without some incentive to buy insurance, people could wait until they got seriously ill to sign up for coverage, pushing up premiums for everyone.

In defense of the mandate, Verrilli said that if a person elected not to get health insurance but then got sick — as nearly everyone will at some point — that person would pass along costs to everyone else.

To prevent that, the Obama administration has argued that Congress can use its authority under the commerce clause of the Constitution to impose the mandate as a way to regulate health insurance. Roberts and Kennedy in the past have supported the federal government's broad authority to regulate commerce.

The Constitution says Congress has the power to "regulate commerce" and to impose taxes to promote the general welfare. The court has upheld federal laws regulating all manner of business, including agriculture, aviation and who can be served at the corner coffee shop.

The few positive moments for the administration came when the law's opponents got their turn to argue. Kennedy and Roberts pressed them to address the unique dynamics of the healthcare market, in which people who do not get health coverage affect everyone's costs.

"That is not true in other industries," Kennedy said at one point. "That's my concern in the case."

In his closing comments, Verrilli shifted gears and tried to convince the conservative justices of the virtues of judicial restraint.

"The Constitution leaves the democratically accountable branches of government" the choice of how best to regulate business and commerce, he said. "That is exactly the kind of thing that ought to be left to the judgment of Congress."

After Wednesday's third day of arguments, the justices will meet behind closed doors Friday to cast their votes and begin working on opinions.

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Is healthcare a privilege or a right?

AppId is over the quota AppId is over the quota One of the most striking take-aways from this week's U.S. Supreme Court hearings on the healthcare reform law was the steadfast insistence on the part of Republicans to deny affordable and accessible medical treatment to as many people as possible.

The party is determined to maintain the status quo of healthcare being a privilege and not a right — putting us at odds with just about every other developed nation on the planet and, not coincidentally, resulting in about 50 million people being uninsured.

The bulk of attention this week was on Tuesday's hearing on the so-called mandate, the reform law's requirement that most people sign up for health insurance or face a modest tax penalty. Judging from some of the questions posed by conservative justices, this is where the law may fall apart.

But some of the most telling remarks came a day later when the attorney representing 26 Republican-led states argued that the law's expansion of Medicaid violates states' rights and represents an act of coercion by the federal government, even though the federal government, and not the states, will foot the bill for nearly all of that additional coverage.

This is a key piece of the reform puzzle. As it stands, the law won't provide coverage to all 50 million now left to fend for themselves (and thus pass along the cost of their care to other taxpayers and ratepayers). It will instead bring about 30 million into the insurance fold.

More than half of that number — about 17 million — will receive insurance through Medicaid. Mostly we're talking about low-income people who are not currently eligible for the program in most states.

Paul Clement, the lawyer for the states, argued that the federal government is twisting the arms of state officials by putting current Medicaid funds on the line. In other words, if states don't agree to expand coverage, they could lose the billions they now receive for the program.

This is a breathtaking assertion on a number of levels. First, no one forces a state to participate in Medicaid. If it doesn't like the federal government's terms, it can walk away from the program.

Second, if a state participates in Medicaid so it can insure some people, why wouldn't it be in favor of any move that allows it to insure more people?

Then there's the core belief among Republicans that the public sector has virtually no role to play in extending health coverage to as many people as possible, even when the private sector has failed miserably in meeting this responsibility.

As I wrote earlier this month, Republican attacks on the mandate as a threat to freedom and liberty ignore the real-world realities of the insurance business.

By allowing people to avoid buying insurance until they need it, and then requiring insurers to cover anyone who comes knocking at their door regardless of medical condition, you create a risk pool of exclusively sick people.

This is a recipe for financial catastrophe, all but ensuring that premiums rocket skyward and thus making health insurance less affordable and accessible for everyone. That's not political ideology talking; it's simple economics.

Opposing an expansion of Medicaid is no less reckless. As things stand, family insurance rates are now as much as $1,500 higher annually because of the cost of treating the uninsured, according to a study by the advocacy group Families USA.

If we can all agree that having tens of millions of people uninsured is not just a national disgrace but also an unfair financial burden for people who do have insurance, then one of our priorities must be to extend coverage to as many people as we can.

This has been accomplished in part by the reform law's provision that young adults can stay on their parents' plans to age 26. According to census figures, young adults are the age group least likely to have health insurance.

In terms of income, nearly two-thirds of the uninsured are in households making less than $50,000 a year. Expanding Medicaid eligibility would thus be the most effective and efficient means of bringing coverage to this segment of the population.

Needless to say, all these problems would be moot if the United States followed the example of its economic peers in Europe and Asia and adopted some sort of Medicare-for-all system guaranteeing universal coverage.

But since that's not going to happen any time soon, our sole alternative is to work within the existing system. And that means some sort of requirement that everyone have health coverage — a proposal originally championed by the conservative Heritage Foundation and embraced by leading Republican politicians (until they realized it was actually a Marxist plot to destroy the healthcare system).

It also means opening the door wider to lower-income folk through the Medicaid program, which, subsidized almost entirely by the federal government, is hardly an abrogation of states' rights and is instead more akin to a gift from Washington.

Republican presidential candidate Rick Santorum showed up outside the Supreme Court earlier this week to say that only "our creator" can bestow rights on people. The inference was that lawmakers have no business fostering a right to healthcare, or even the expectation of such a right, among Americans.

Santorum's 3-year-old daughter has a severe genetic disorder called Trisomy 18. According to the U.S. National Library of Medicine, half of all infants with the ailment do not survive beyond the first week of life. "Some children have survived to the teenage years, but with serious medical and developmental problems," it says.

Luckily for this little girl, her father has reported earning more than $3.6 million since he left Congress in 2007, so she'll probably never want for insurance coverage.

But do Santorum and his Republican allies truly think that others who lack such good fortune deserve less, or perhaps no, medical care? Do they believe that other children with preexisting conditions have less of a right to treatment?

Or is there perhaps room to acknowledge that simple standards of human decency make clear that society has certain obligations, and in the United States, as of this moment, those obligations are not being met?

 

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Supreme Court appears poised to nullify entire healthcare law

Paul Clement, wearing a blue tie on right, an attorney representing 26 states challenging the federal healthcare law, leaves the Supreme Court with others after Wednesday's arguments. (Jonathan Ernst, Reuters / March 28, 2012)

WASHINGTON — The Supreme Court, after three days of arguments on President Obama's healthcare overhaul, appeared ready to strike down not just the requirement that individuals have insurance, but the entire law, invalidating a major piece of domestic legislation for the first time since the Depression.

That prospect, unthinkable to many experts as recently as last week, will not be certain until the justices rule on the case, probably in June.

But the electric set of arguments that ended Wednesday revealed profound skepticism about the law by the court's five-member conservative majority, which appeared openly hostile to its scheme for mobilizing the federal government to achieve universal healthcare.

In question after question the nine justices revealed themselves as sharply divided as Congress and the American public over the virtues of Obama's law.

But unlike Congress — whose slim Democratic majority allowed passage of the law in 2010 — the court has a narrow majority of Republican appointees. If united, the five conservatives could vote to strike down the entire law. And during arguments Wednesday, they sounded prepared to do just that, including scrapping a major expansion of the Medicaid health insurance program for the poor.

"One way or another, Congress is going to have to reconsider this," said Justice Antonin Scalia, an appointee of President Reagan. "Why isn't it better to have them reconsider it in toto?"

Justice Ruth Bader Ginsburg, the senior liberal, appealed for a more cautious approach. She said the court should do a "salvage job" rather than undertake a "wrecking operation." But she looked to be outvoted by the conservatives.

The justices will meet in private Friday to cast their votes. Their comments during oral arguments do not always forecast the eventual ruling. And it has been widely assumed that the justices, particularly Chief JusticeJohn G. Roberts Jr.and JusticeAnthony M. Kennedy, would try mightily to avoid striking down a major law by a 5-4 vote. Solicitor Gen. Donald Verrilli Jr., the Obama administration's top lawyer, pleaded with the court for restraint Wednesday.

"Congress struggled with the issue of how to deal with this profound problem of 40 million people without healthcare for many years. And it made a judgment," Verrilli said as he wrapped up his arguments.

"This was a judgment of policy that democratically accountable branches of this government made by their best lights, and I would encourage this court to respect that judgment," he said.

The cause was taken up by the court's four liberal members, who urged their colleagues not to throw out the entire law, even if they find the provision requiring Americans to have health insurance unconstitutional.

"What's wrong with leaving it … in the hands of the people who should be fixing this, not us?" asked Justice Sonia Sotomayor.

The administration was prepared to accept a ruling that if the mandate was struck down, some other provisions should fall as well, such as the requirement that insurers sell coverage to people with preexisting conditions.

But there were few signs, if any, that any of the five conservatives were persuaded, including Kennedy, long considered the court's swing vote.

Like the other conservatives, Kennedy signaled deep unease with the provision that would require nearly all Americans to have health insurance starting in 2014.

On Wednesday, he seemed reluctant to excise that provision alone from the sweeping law for fear of harming the economic interests of the insurance companies, which he said would be "a more extreme exercise of judicial power … than striking the whole."

Scalia appeared openly scornful of the suggestion that Congress could fix the law if the court threw out the insurance 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?" he said.

Roberts and Justice Samuel A. AlitoJr.appeared equally leery. Justice Clarence Thomas, the fifth member of the conservative wing, did not ask any questions but is widely seen as eager to invalidate the Patient Protection and Affordable Care Act.

On Wednesday, the conservative justices targeted a provision that provides funding for states to enroll 17 million more people in their Medicaid programs over the next decade, a key pillar of the law's program for expanding coverage.

Kennedy seemed to accept the argument by 26 states challenging the law that they are being unjustly forced to administer a massive Medicaid expansion.

Verrilli tried to persuade the justices that the law's provision providing hundreds of billions of dollars to states to expand their Medicaid programs in 2014 was not "coercive."

Under the act, the federal government would pay more than 90% of the cost of expanding Medicaid to cover all poor Americans, while each state would retain responsibility for administering its own program, as has been the case since Medicaid was created in 1965.

That is a "big gift," said Justice Elena Kagan, who was joined by the three other liberal members of the court in defending the Medicaid expansion.

But the conservative justices appeared far more in line with Paul Clement, the attorney for the states. He argued that the aid would undermine state authority by leaving states effectively no choice but to expand Medicaid or face the possibility that the secretary of Health and Human Services would cut off all their aid.

"Why shouldn't we be concerned about the extent of authority that the government is exercising, simply because they could do something less?" Roberts said, brushing aside Verrilli's efforts to assure the court that no administration would actually take such a step.

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On healthcare, not what the doctor ordered

Mitt Romney marked the second anniversary of the Patient Protection and Affordable Care Act by calling for its repeal. Referring to the act as "an unfolding disaster," he advocated free-market initiatives to improve access to care. Yet Romney never explained how the free market could help uninsured individuals like my longtime patient Joyce.

Joyce, a diabetic in her 60s, works for a Los Angeles church and spends much of her time doing charitable work in Africa. The church does not offer health insurance. As a diabetic with high cholesterol, Joyce has been virtually uninsurable for most of the time I've treated her. With her preexisting conditions, no insurer would take her even if she could afford the premium. Insurers know that diabetics like Joyce are much more likely to become ill and generate expensive bills, and the free market incentivizes them to identify high-risk individuals and exclude them.

Free-market advocates seldom focus on the plight of those priced out of the insurance market. These patients tend not to get care when they need it, and when they do, their physicians face inevitable conflicts between providing high-quality care and keeping costs down.

This week, for example, I received a reminder from my medical group's pharmacist that Joyce's cholesterol is too high despite the medication she takes to control it. The pharmacist recommended switching her to a more potent drug. But when I checked online, the cheapest local pharmacy I could find was charging $120 for a month's worth of the recommended drug, versus $6 for her current one. I told the pharmacist that I would refill her current medicine and that we should recheck in three months to see if the price for the other had dropped. Should doctors really have to follow drug prices like market analysts in order to care for their patients? Welcome to the free market in healthcare.

Despite her tight finances, Joyce makes an effort to get the preventive care I recommend, including mammograms, pap smears and blood tests for her diabetes. Sometimes, though, cost considerations interfere. As a diabetic, Joyce faces risk of retinal eye injury that can cause blindness. Although such injury is preventable with routine eye care, Joyce has not visited an eye doctor for more than two years. A colonoscopy to prevent colon cancer is now recommended at age 50. Joyce is more than 10 years overdue for hers. Why? It would cost well over $1,000.

Joyce's experiences outside my office have been even worse. When I called to discuss her cholesterol medication, she mentioned to me that she recently suffered a bout of chest pain and visited a small community hospital near her home. The doctors told her she needed overnight observation. She went home the next day with a hospital bill of more than $19,000, plus hundreds more in physicians' charges. Were the services Joyce received necessary? She's not sure.

Fortunately for Joyce, her healthcare nightmare is ending. She has just turned 65 and will now be eligible for Medicare. Soon she will be able to get the basic tests and medications that she needs after years of devoting herself to the impoverished in Africa. But I can't help but wonder why so many of those younger than 65, living in one of the world's richest nations, must avoid care or risk financial ruin.

Despite Romney's optimism, free markets will never solve the problems Joyce faced. Health insurance for someone like Joyce, if obtainable, would cost thousands of dollars a year, and no free-market approach to healthcare will make that affordable to her. If universal coverage is the goal, there is no alternative to subsidies funded by employers and taxpayers. These subsidies — along with an individual mandate designed to bring younger, healthier people into the pool — form the basis for President Obama's healthcare plan. Those who call for "repealing and replacing" it should explain who would be covered by the "replacement" and how the care would be funded.

The national debate on healthcare will take center stage this fall as Obama squares off against his Republican opponent. The country deserves a frank discussion of the major policy questions raised by the plight of the country's many Joyces. We have to ask ourselves the tough questions: Should healthcare coverage for the uninsured be broadly subsidized? Are we comfortable with millions of Americans continuing to live in terror that something serious will go wrong with their health?

This is a conversation we need to have as a nation, without the partisan political posturing and gamesmanship that so often cloud the issues.

Daniel J. Stone practices internal medicine and geriatrics in Beverly Hills.

Copyright © 2012, Los Angeles Times

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