WASHINGTON — The U.S. Supreme Court took healthy bites into the meat of the health reform case today, picking apart arguments on the requirement that everyone obtain insurance — the most controversial aspect of the plan.
“Under the Commerce Clause, what Congress has done is to enact reforms of the insurance market,” U.S. Solicitor General Donald B. Verrilli Jr. told the court.
As part of the 2010 Patient Protection and Affordable Care Act, the reforms would prevent insurance companies from excluding people who have reached certain limits or have pre-existing conditions. An estimated 95 percent of Americans would be covered, with exceptions for Native Americans under tribal plans, those who have religious grounds and the incarcerated.
Regulating the market and covering as many people as possible would reduce the rising cost of uncompensated care for the uninsured and underinsured, said Verrilli, who found himself rebutting various analogies by some of the justices.
“So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?” Chief Justice John G. Roberts Jr. asked.
Justice Samuel Anthony Alito made an analogy to how people without burial insurance pass on funeral and cremation costs to others. “I don't see the difference,” Alito said. “You can get burial insurance. You can get health insurance. Most people are going to need health care, almost everybody. Everybody is going to be buried.”
Justice Antonin Scalia even brought up mandated broccoli purchases as part of a food market.
Health care is different, Verrilli insisted. “People cannot generally control when they enter that market or what they need when they enter that market,” he said. “Health-care providers charge higher rates in order to cover the cost of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health insurance costs.”
Washington attorney Paul D. Clement argued on behalf of the 26 states and private parties that filed lawsuits against the health plan. “The whole problem is that everybody is not in that market,” Clement said, “and they want to make everybody get into that market.”
Sen. John Kerry, D-Mass., was among those attending the hearing on Tuesday. “It was very interesting, and it was obviously contentious,” Kerry said at the conclusion of the two-hour session. “I thought there were some votes on both sides, and there are some definite question marks. We’ll see.”
In his state, the individual mandate comes with a $1,200 annual penalty for those who don’t have health coverage, according to the American Bar Association. The penalty under the Affordable Care Act would range from $95 to $695 a year, if the provision is implemented in 2014.
On Wednesday, the court will hear arguments on whether the rest of the law can be separated from the individual mandate, an issue known as “severability.” Another key topic is whether states are being coerced into expanding Medicaid. The justices are expected to make a decision at the end of their term in late June.
The individual mandate is key to making the Affordable Care Act work, said Rahn K. Bailey, M.D., president-elect of the National Medical Association. Bailey was in the nation’s capital from Nashville, Tenn., where he is chairman of the Department of Psychiatry and Behavioral Sciences at Meharry Medical College. He joined nearly two dozen African-American physicians from NMA—all clad in white lab coats—outside the Supreme Court building in support of health reform.
Alfred Chiplin Jr., managing attorney at the Center for Medicare Advocacy Inc. in Washington, D.C., said the individual responsibility provision is “the heart of the law.”
“Everyone has to have some level of insurance, or there won’t be a sufficient number of people in the system to make it sustainable,” Chiplin said. “Further, those who are uninsured and suffer a health incident are a cost on the society as a whole; plus our notions of a civil society and our sense of good public policy is that we want a healthy population. And, few can afford to self-insure or have the inclination or discipline to set aside sufficient resources to cover a health crisis on their own.”
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