Justices Seem Eager to Hear Mandate Question



WASHINGTON – As the Affordable Care Act finally got its day in the Supreme Court, justices seemed eager to set aside preliminary issues and move on to the important question of whether the law’s individual mandate is constitutional.

Outside the court, Families USA executive director Ron Pollack said that arguments March 26 – which bogged down in discussions of whether Americans would be paying a "tax" or a "penalty" if they failed to secure insurance coverage – were the "hors d’oeuvres," before the "main meal," on Tuesday.

Mr. Pollack said that after seeing the arguments, "clearly, the justices want to get on and render a decision."

Supporters and opponents of the Affordable Care Act rallied outside the court building. A group of physicians representing the grassroots organization Doctors for America (DFA) said they were there to show their support.

Dr. Vivek Murthy, president of DFA, said in an interview that the Affordable Care Act (ACA) provides a window of opportunity to address the problems with the health care system. If all or part of the law is struck down, DFA will continue a planned effort to educate 1,000,000 Americans on the law.

Alicia Ault/IMNG Medical Media

Protestors gather as the Supreme Court hears arguments on the Affordable Care Act.

The individual mandate is particularly important because it could help reduce health care costs by ensuring more Americans are insured, according to Dr. Murthy, a hospitalist at Brigham and Women’s Hospital in Boston.

The justices asked several questions about the mandate during Monday’s arguments. Some asked who would be hurt and how if the mandate stayed in place.

Justice Sonia Sotomayor asked U.S. Solicitor General Donald B. Verrilli Jr. what the consequences would be for those who did not pay the penalty, noting that the challengers to the law said that there could be "other collateral consequences."

Mr. Verrilli said that there would be no other consequences and, in addition, that there are several exemptions from the penalty, including for low-income individuals and families.

The challengers – 26 states and the National Federation of Independent Business – represented by attorney Gregory G. Katsas, argued that the mandate would hurt even those not directly subject to the provision.

"We have individuals who are planning for compliance in order to avoid a penalty, which is what their affidavits say. And we have the states, who will be subject no doubt to all sorts of adverse ramifications if they refuse to enroll in Medicaid the people who are forced into Medicaid by virtue of the mandate," said Mr. Katsas, with a Washington law firm.

The justices will consider on Wednesday whether the ACA is unduly coercive by requiring states to expand their Medicaid programs.

Louisiana is one of the 26 states that has alleged it will be harmed by the individual mandate. If the law is upheld, "it will be devastating" to the state, Attorney General Buddy Caldwell said in an interview. Residents already get access to free health care through a statewide charity system, he said, adding that many small businesses as well as low-income residents will suffer if they have to buy insurance coverage.

That’s why the states sued, Mr. Katsas said.

"The purpose of this lawsuit is to challenge a requirement – a federal requirement to buy health insurance. That requirement itself is not a tax," he said. Mr. Katsas said that 19th-century precedents should not prevent the justices from hearing this case and that the penalty could be treated as a separate matter from the mandate.

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