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Saturday, July 13, 2024

Obama’s lawyer to Supremes: Save the healthcare law

Tea Party supporters participate in a "Hands Off My Health Care" rally at the Upper Senate Park March 27, on Capitol Hill in Washington, DC. A US Supreme Court justice seen as a key swing vote, challenged landmark health care reforms, as arguments focused on whether Americans can be forced to buy health insurance. (AFP Photo/Alex Wong)

The Obama administration’s top courtroom lawyer made an impassioned plea on Wednesday for the Supreme Court to save President Barack Obama’s healthcare law, capping three days of historic arguments that left it unclear how the nine justices would rule.

Having peppered lawyers for and against the law with questions for more than six hours over the three days, the justices withdrew to their chambers to begin up to three months of deliberation expected to yield a decision by late June.

Obama’s healthcare overhaul, signed into law two years ago, is his signature domestic policy achievement. It remains a divisive issue among Americans and is likely to be a key issue ahead of the November 6 election in which he seeks a second term.

The justices took up two issues on the last day of arguments on Wednesday: whether the rest of the law could stand if the centerpiece requirement that most Americans get insurance or face a penalty is struck down; and the validity of expanding the state-federal Medicaid healthcare program for the poor.

After what critics called a poor performance on Tuesday, U.S. Solicitor General Donald Verrilli, arguing for the administration, closed his case with an emotional request that the justices uphold the law. Verrilli cited millions of people with chronic conditions such as heart disease, diabetes and breast cancer who would get health insurance under the law.

Congress made a judgment in passing the law, Verrilli said. “Maybe they were right, maybe they weren’t.” But he said the court should respect the policy judgment made by democratically elected lawmakers in their decades-long struggle to help millions of uninsured.

The law, which constitutes the $2.6 trillion U.S. healthcare system’s biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.

Unlike healthcare in other rich countries, the U.S. system is a patchwork of private insurance and restrictive government programs that has left tens of millions of people uninsured. The United States pays more on healthcare per person than any other country.

Critics of the law say it meddles too much in the lives of individuals and in the business of the states. They say that if the federal government can force people to buy health insurance, it would be able to force people to, for example, purchase American-made cars or join health clubs.


Twenty-six of the 50 U.S. states and a small business trade group challenged the law in court. The lawyer for the states fighting the law, Paul Clement, told the court: “I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”

The fate of the wide-ranging law, including the mandate that most Americans buy health insurance by 2014, likely is in the hands of two key justices – Chief Justice John Roberts and Anthony Kennedy, who often casts the decisive vote.

The court appeared sharply divided along ideological lines, with the five Republican-appointed conservatives doubting the law would survive and the four Democratic-appointed liberals offering a strong defense for the statute.

If even one of the conservative justices joins the liberal wing on the court, the law would be upheld. If the conservatives stay united, the law would fall.

The states challenging the law say the rest of Obama’s healthcare overhaul must go if the court strikes the insurance requirement. Clement, their lawyer, told the justices that the so-called individual mandate to obtain insurance or face a penalty was “essential to the entire scheme.”


That sentiment was shared by conservative Justice Antonin Scalia, who said that if the individual mandate was struck down, the entire law must go. “My approach would be if you take the heart out of the statute, the statute is gone,” he said.

Chief Justice Roberts said the court would have difficulty figuring out what Congress really wanted to survive from the law because of horse-trading that went on when lawmakers crafted the legislation. The law was passed when Obama’s fellow Democrats controlled both houses of Congress after a contentious fight with Republicans dead set against it.

Roberts also noted that the law had two purposes in its title, “Patient Protection and Affordable Care Act,” and said it would be tough if not impossible to discern Congress’ intent.

“That’s just an inquiry that you can’t carry out,” he said.

Kennedy voiced concern about possible unintended consequences in the form of huge costs to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – was invalidated alone.

“We would be exercising the judicial power if one … provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “By reason of this court, we would have a new regime that Congress did not provide for, did not consider.”

The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.

Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?”

Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. “Why make Congress redo those?”

Another Obama administration lawyer, Edwin Kneedler, told the court that if the mandate was struck down, only two key provisions would also have to fall, those related to coverage for people’s pre-existing conditions and limiting costs for those patients with a past medical history.

The justices are expected to meet in private on Friday to discuss the issues heard during the arguments this week and take a preliminary secret vote on how they plan to rule. The justices then will begin drafting their written opinions in the private confines of their chambers.

The justices also reviewed whether Congress violated the Constitution by prodding states to dramatically expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans.

There did not appear to be a majority supporting the challenge to that expansion but like all of the issues in the case, the court appeared deeply divided along ideological lines.

Ginsburg said that while 26 states oppose the expansion, other states welcome it. Scalia asked the politics of the states for and against the federal healthcare funds, to which Clement acknowledged the Republican-led states were against it and Democratic-led states favored it.

A Reuters/Ipsos online poll released on Wednesday found that 65 percent of respondents favored some kind of U.S. healthcare overhaul – 44 percent of them backing the Obama healthcare law and an additional 21 percent wishing it went further.

The rest, 35 percent, said they opposed the law and major changes to healthcare generally.

The crowd of supporters and opponents of the law outside the court was smaller and more subdued on Wednesday compared to the noisy demonstrations on Monday and Tuesday.

There are many more provisions in the law aside from the mandate that people obtain insurance. It prohibits insurers from denying coverage to people with pre-existing medical conditions, dropping coverage when people get sick or imposing higher costs on women and older people.

It extends coverage to the uninsured through federally subsidized health insurance exchanges and a dramatic expansion of Medicaid. It bans lifetime limits on insurance coverage, allows young adults to remain on parents’ insurance plans through age 26 and requires preventive services including free mammograms for women.

The White House said on Wednesday it was not working on a contingency plan in the event that the court strikes down all or part of the law, saying it is confident that the statute is constitutional.

Shares of health insurers were mixed in afternoon trading, with the Morgan Stanley Healthcare Payor index of insurers down 1.1 percent, generally in line with declines for the broader market. Shares of hospital chains were lower, with Community Health Systems down 2.5 percent and Tenet Healthcare off 3.9 percent.

The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.

(Additional reporting by Jeremy Pelofsky, Ian Simpson, David Ingram and David Morgan in Washington and Lewis Krauskopf in New York; Editing by Howard Goller and Will Dunham)

Copyright 2012 Thompson Reuters

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7 thoughts on “Obama’s lawyer to Supremes: Save the healthcare law”

  1. Find a doctor that takes cash. They exist. Watch your office visit drop from $180 to $40-60. That’s not a co-pay, that’s the total if you pay cash. Talk to your doctor as it’s worth it to them to not have to hassle with the government and insurance companies.

    Why have insurance when the insured still end up declaring bankruptcy if something truly terrible happens?

    It’s just another ponzi scheme to strip you of your wealth.

  2. I tripped over a brick on the hill below my home and landed on the brick breaking the lower bone on my right leg. I crawled up the hill, up the outdoor stairs and into the bathroom off my bedroom. I took a bath and called my doctor who told me he would wait for me to get a ride to his office. I did not call an ambulance as I had no insurance. He set the bone and put on the first of three casts and sent me home. My daughter was in town and she rented me a small refrigerator for my bedroom and carried the microwave from the top floor down to where I could make my coffee and simple meals.

    I lost 3 days of work and was able to use my sewing machine with my left leg. My boss picked me up and brought me home and I managed to survive without a call to the emergency room. My doctor’s bill was under $500 and he allowed me to pay it off $100 per month. I had a young Mexican girl who worked in our factory and she drove me to the market a couple of times until I could manage my car. She also brought me Mexican food every Sunday that made my broken leg seem worth it.

    I had to arrange for a mail delivery while I was unable to walk down the road to the mail box. I had a large fenced back yard where my dogs could exercise without our daily walkies.

    My mother’s family were Pioneers who arrived just before the War against England. The journals that I read allowed me to follow how they survived without the government taking care of any of us.

    Many times I have had to put on a pressure bandage until I could drive myself to my doctor’s office for stitches. My children understood why they could not ride in an ambulance during those years before they attended Berkeley where they had health insurance.

    Get a Red Cross Emergency book and some clean sheets with tape and learn the art of survival. Even when my doberman tangled with a Fox, I put her ear back together with super glue.

    We must remember that we humans have extended brains through evolution and we should learn to use them. We are not as helpless as we claim to be when the fear of living without emergency services hits us.

    I make a point to know my neighbors everywhere I have lived and many times it has kept many of us safe. It is not fair to play dumb during emergencies.

  3. Beyond the Constitutional issues, which seem not to be amenable to waiver in response to an “impassioned plea” of how much grandma needs health care, there is a problem of definition regarding insurance.

    Per Wiki, “Insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss.” Note the words, “Risk Management and “Uncertain Loss”, which imply coverage for a more or less rare occurrence of some magnitude greater than one would normally be prepared for… e.g., a trip to the doctor for a flu shot, meds, broken arm, etc.

    In fact, health insurance started that way… as a form of catastrophic protection… but it has been morphed by proponents left and right into what amounts to a “Payment System” by which some or all of even the most regular health care, costing from near nothing to catastrophic amounts, is now charged to the Payer, whomever that be… individual, insurer, employer, govt, etc.

    As Obamacare stands, that Payment System is to be broadened and enlarged to cover as much health care as possible, depending on how many individuals can be forced to participate, right up to the point that the system runs out of payments… at which time “health care” erodes systematically. That time will depend on how much money can be extracted from individuals and employers, as both the insurers and govt merely cost-shift their contributions to the Payment System to taxpayers. It doesn’t matter that it is called a “Private” health care system, because every citizen will be forced to contribute to the payments made on behalf of everyone else.

    Thus, it is no longer “Insurance” but a govt mandate by which we are all indentured servants from the time we reach the age of majority until death. And that is why Justice Kennedy said that Obamacare changes “the fundamental relationship between the government and individuals”.

    We would no longer be the “Land of the Free.”

    • I think the proper term would be “Communism.”

      That’s okay, folks, you can say it. Go ahead, let it roll off the tongue…Communism.

      You asked for it. You voted for it. Again and again.

      Stop complaining, unless you intend to do some thing about it.

      From all indications, we plan on doing nothing.

      • Fascism / Corporatism is more like it. This is anything but a Gov’t take over of the Ins. Industry, it’ s more like the opposite as Gov’t will be used here to extort $$ from us and that $$ will then go directly to a “private Corp.” Communism would involve seizing control of the entire Health Industry and nationalizing it and turning all its employees into Federal Employees. This is hardly that.

  4. So, if the Supreme Court throws this out, we just go back to a system where people without health insurance stop or decrease their visits to doctors until their medical situation is critical. Then, they enter the emergency room at the hospital which is an expensive visit, of course.

    If no type of insurance is in effect, the hospital swallows the cost, but later must raise their fees to people who have insurance to cover their budget deficits caused by people who cannot pay.

    Therefore, it seems to me like six of one, half dozen of another….Either we have a system of health care in place for nearly everyone that allows patients to receive lower cost care in the doctor’s office or we don’t have that system and pay higher prices via hospital visits by those patients. Either way it must be paid for.

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