Court appears split by ideology over health care

MARK SHERMAN

Asso­ci­ated Press

WASHINGTON — Con­clud­ing three days of fer­vent, pub­lic dis­agree­ment, a Supreme Court seem­ingly split over ide­ol­ogy will now wres­tle in pri­vate about whether to strike down key parts or even all of Pres­i­dent Barack Obama’s his­toric health care law. The jus­tices’ deci­sion, due this June, will affect the way vir­tu­ally every Amer­i­can receives and pays for care.

The court wrapped up pub­lic argu­ments Wednes­day on the over­haul, which is designed to extend health insur­ance to most of the 50 mil­lion Amer­i­cans now with­out it. The first and biggest issue the jus­tices must decide is whether the cen­ter­piece of the law, the require­ment that nearly all Amer­i­cans carry insur­ance or pay a penalty, is constitutional.

Wednesday’s argu­ment time was unusual in that it assumed a neg­a­tive answer to that cen­tral ques­tion. What should hap­pen to other pro­vi­sions, the jus­tices and lawyers debated, if the court strikes down the require­ment? If the jus­tices are fol­low­ing their nor­mal prac­tice, they had not even met to take a pre­lim­i­nary vote in the case before all argu­ment concluded.

Ques­tions at the court this week days showed a strong ide­o­log­i­cal divi­sion between the lib­eral jus­tices who seem inclined to uphold the law in its entirety and the con­ser­v­a­tive jus­tices whose skep­ti­cism about Con­gress’ power to force peo­ple to buy insur­ance sug­gests deep trou­ble for the insur­ance require­ment, and pos­si­bly the entire law.

The divide on the court reflects a sim­i­lar split in pub­lic opin­ion about the law, which Con­gress approved two years ago when Democ­rats con­trolled both houses. The jus­tices’ deci­sion is sure to become a sig­nif­i­cant part of this year’s pres­i­den­tial and con­gres­sional elec­tion cam­paigns, in which Repub­li­cans have relent­lessly attacked the law.

Both lib­eral and con­ser­v­a­tive jus­tices appeared on Wednes­day to accept the administration’s argu­ment that at least two impor­tant insur­ance changes are so closely tied to the must-have-coverage require­ment that they could not sur­vive with­out it: pro­vi­sions requir­ing insur­ers to cover peo­ple regard­less of their exist­ing med­ical prob­lems and lim­it­ing how much those com­pa­nies can charge in pre­mi­ums based on a person’s age or health.

Less clear was whether the court would con­clude the entire law, with its hun­dreds of unre­lated pro­vi­sions, would have to be cast aside.

The jus­tices also spent part of the day con­sid­er­ing a chal­lenge by 26 states to the expan­sion of the federal-state Med­ic­aid pro­gram for low-income Amer­i­cans — an impor­tant fea­ture which alone was expected to extend cov­er­age to 15 mil­lion peo­ple and which no lower court has rejected.

Audio of Wednes­day morning’s argu­ment can be found at: http://apne.ws/GX1p23 ; the after­noon argu­ment at: http://apne.ws/GXdZOP .

Solic­i­tor Gen­eral Don­ald Ver­rilli Jr. took a few sec­onds at the end of the Med­ic­aid argu­ment to make a final plea for the court to uphold the entire law, which he said would “secure the bless­ings of lib­erty” for mil­lions of Amer­i­cans by pro­vid­ing them with afford­able health care.

Ver­rilli told the court that Con­gress had made a pol­icy deci­sion to fight the high cost of med­ical care through the new law. “I would urge the court to respect that judg­ment,” he said.

Paul Clement, the lawyer for the states chal­leng­ing the law, retorted that it would be a strange def­i­n­i­tion of lib­erty to make peo­ple who may not want it buy health care insur­ance. And he called Con­gress’ threat to cut all Med­ic­aid fund­ing from states that refuse to expand the pro­gram “a direct threat to our federalism.”

Not since 2000, when the court resolved the Bush v. Gore dis­pute over Florida elec­tion returns that sealed George W. Bush’s elec­tion as pres­i­dent has a Supreme Court case drawn so much attention.

In their ques­tions Wednes­day, lib­eral jus­tices Sonia Sotomayor, Elena Kagan, Ruth Bader Gins­burg and Stephen Breyer took issue with Clement, who was ask­ing that the Patient Pro­tec­tion and Afford­able Care Act be tossed out in its entirety.

“What’s wrong with leav­ing this in the hands of those who should be fix­ing this?” asked Sotomayor, refer­ring to Congress.

Chief Jus­tice John Roberts also spoke about parts of the law that “have noth­ing to do with any of the things we are” talk­ing about.

For exam­ple, Gins­burg observed that the act deals with issues such as black lung disease.

“Why make Con­gress redo those?” she asked. “There are many things” that have “noth­ing to do with afford­able health care.”

But Clement said the court would be leav­ing “a hol­low shell” if it decided to excise the sev­eral key pro­vi­sions. “The rest of the law can­not stand,” he contended.

Roberts and Jus­tice Anthony Kennedy also asked hard ques­tions of Deputy Solic­i­tor Gen­eral Edwin Kneedler that indi­cated they are at least con­sid­er­ing Clement’s argu­ments. Kneedler said that the only other pro­vi­sions the court should kill in the event the man­date is stricken are the two that bar refus­ing cov­er­age to sick peo­ple and lim­it­ing the charges to old or sick people.

Jus­tice Antonin Scalia sug­gested many mem­bers of Con­gress might not have voted for the bill with­out the cen­tral pro­vi­sions, and he said the court should not go through each and every page to sort out what stays and what goes.

“What hap­pened to the Eighth Amend­ment?” Scalia asked, refer­ring to the Constitution’s ban on cruel and unusual pun­ish­ment. “You really expect us to go through 2,700 pages?”

In the after­noon argu­ments, the lib­eral jus­tices made clear they would vote to uphold the Med­ic­aid expan­sion, for which the fed­eral gov­ern­ment would pay almost all the costs.

Jus­tices Sotomayor, Kagan, Gins­burg and Breyer voiced strong dis­agree­ment with the states’ con­tention that the expan­sion of the joint state-federal pro­gram would be uncon­sti­tu­tion­ally coercive.

“Why is a big gift from the fed­eral gov­ern­ment a mat­ter of coer­cion?” Kagan asked.

Even Roberts joined his lib­eral col­leagues in ques­tion­ing Clement about the states’ argu­ment that that the expan­sion comes with too many strings.

“Well, why isn’t that a con­se­quence of how will­ing they have been since the New Deal to take the fed­eral government’s money? And it seems to me that they have com­pro­mised their sta­tus as inde­pen­dent sov­er­eigns because they are so depen­dent on what the fed­eral gov­ern­ment has done, they should not be sur­prised that the fed­eral gov­ern­ment hav­ing attached the — they tied the strings, they shouldn’t be sur­prised if the fed­eral gov­ern­ment isn’t going to start pulling them,” Roberts said.

A col­or­ful assem­bly of demon­stra­tors sounded off pro and con out­side the mar­ble court build­ing all three days, though Wednesday’s crowd was the smallest.

Sup­port­ers of the law held a morn­ing news con­fer­ence to stress the impor­tance of Med­ic­aid. And, march­ing on the side­walk out­side the court, they repeated chants they had used the pre­vi­ous two days, includ­ing “Ho, ho, hey, hey, Oba­macare is here to stay.” Most of their group departed not long after argu­ments began inside.

Oppo­nents of the law, includ­ing Susan Clark of Santa Mon­ica, Calif., also stood out­side the court. Clark, who was wear­ing a three-cornered colonial-style hat, car­ried a sign that read “Oba­macare a dis­as­ter in every way!”

“Free­dom, yes. Oba­macare, no,” other oppo­nents chanted.

Posted by AP News on Mar 28 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.