Supreme Court Justices Appear Divided Over Individual Mandate; Health Reform Case Heads Into Final Day

March 28, 2012 — On the second day of oral arguments over the federal health reform law (PL 111-148), the Supreme Court's more conservative justices appeared skeptical that Congress has the power to require people to purchase health coverage, while the more liberal justices were generally accepting of the concept, the Washington Post reports (Aizenman/Barnes, Washington Post, 3/27).

Federal Government's Argument

U.S. Solicitor General Donald Verrilli, who is representing the federal government, faced "aggressive questioning" about whether compelling U.S. residents to buy health insurance could open the door to government mandates for purchasing other products, Politico reports (Budoff Brown et al., Politico, 3/28).

Verrilli argued that virtually all U.S. residents will use health care at some point and that the law is an appropriate response to crisis-level problems in the health care market, according to the New York Times.

Justice Anthony Kennedy, who is considered the court's swing vote, appeared skeptical about the government's position, although his questioning can be "hard to read," the Times reports. Kennedy told Verrill he faces "a heavy burden of justification" (Liptak, New York Times, 3/27).

Kennedy characterized the individual mandate as telling U.S. residents that they "must act," noting, "That changes the relationship of the government to the individual in [a] very fundamental way" (Asseo/Stohr, Bloomberg, 3/27).

The court's more conservative justices seemed unconvinced that the health care market is unique and questioned whether the government could compel people to buy other types of products, such as food or cell phones (New York Times, 3/27).

"The federal government is not supposed to be a government that has all powers," Justice Antonin Scalia said, adding, "It's supposed to be a government of limited powers" (Bloomberg, 3/27).

The court's liberal justices seemed inclined to agree with Verrilli. Justice Ruth Bader Ginsburg noted that the uninsured end up receiving health care that is paid for by others. "The problem is that they are making the rest of us pay," she said (New York Times, 3/27).

Justice Sonia Sotomayor suggested that the government can require U.S. residents to purchase insurance prior to needing it "because you can't buy it at the moment you need it" (Bloomberg, 3/27).

Arguments From Plaintiffs' Lawyer

During his oral arguments, Paul Clement -- the lead attorney for the plaintiffs -- faced fewer "pressing" questions from conservative justices than Verrilli, "SCOTUSblog" reports (Goldstein, "SCOTUSblog," 3/27). Instead, the court's more liberal justices posed most of the questions to Clement, joined at times by Kennedy and Chief Justice John Roberts.

Clement argued that while the government can incentivize purchasing a product or service, it cannot mandate that people buy it. He cited the government's "Cash for Clunkers" used car program as an example of the former. The argument prompted Roberts to note that "the key to the government's argument" is that everyone is a health care consumer, unlike in the car market.

Kennedy also suggested that everyone is already in the health care market because the uninsured are "creating a risk that the market must account for." Several of the justices pointed out that insured individuals pay at least $1,000 annually on average to subsidize emergency care for the uninsured.

Sotomayor noted that even though everyone will not have a car accident, states still require them to have car insurance (Totenberg, "All Things Considered," NPR, 3/28).

Wednesday's Arguments

Wednesday is the last day of oral arguments in the case. The justices will consider the issue of severability -- whether the law can stand if they determine the individual mandate is unconstitutional -- and whether the Medicaid expansion in the overhaul represents an unlawful coercion of the states by the federal government (Aizenman/Barnes, Washington Post, 3/28).

Opinion Piece Argues That Striking Down Health Reform Law Would Be Bad for Women

The health reform law "has done more to expand women's access to health care than any other piece of legislation in more than 50 years," Cate Edwards, president of the Elizabeth Edwards Foundation and attorney at Advocates for Justice, writes in a Politico opinion piece. Edwards writes that a decision to strike down the law "would not only shirk [the court's] constitutional responsibility, it would unduly injure the welfare of American women."

Edwards notes that the health reform law "protects women with pre-existing conditions like breast cancer, [and] it guarantees women access to preventive services." She writes that the law "also confronts the problem that causes more than half of all women to delay medical care: the high cost."

Edwards writes that "the cost of treatment makes a difference" and cites data showing that mammography rates increased by 9% when women did not have to pay out-of-pocket. Since the law's passage, more than 20 million women "have already taken advantage of the new guarantee to preventive services," she notes. Edwards concludes, "Women can now get the health care they need to stay healthy and alive -- for themselves and their families. That is promoting the general welfare" (Edwards, Politico, 3/27).