KHN Morning Briefing

Summaries of health policy coverage from major news organizations

Justices Explore Merits Of Preserving Parts Of The Health Law If Mandate Is Overturned

On the third day of the Supreme Court's consideration of the health law, justices sparred over whether some parts of the measure could proceed if the court decides to void its insurance mandate.

The Supreme Court has posted the transcript and audio for this morning's arguments.

Kaiser Health News has excerpted highlights.

The Wall Street Journal: Justices Spar Over Health Law
The Supreme Court's liberal justices went head to head with the court's conservatives Wednesday in an effort to protect the Obama administration's health law, suggesting in their questions that most of the measure should be kept even if the requirement to carry health insurance or pay a penalty is struck down.
Justice Ruth Bader Ginsburg, the court's senior liberal, said that if the justices must choose between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job." And Chief Justice John Roberts ... asked several questions that appeared to further Mr. Clement's case. The chief justice said many provisions ... were included as sweeteners to help enact the less-popular individual mandate. Without those provisions, Congress "would not have been able to cobble together the votes to get it approved," Chief Justice Roberts said (Radnofsky and Kendall, 3/28).

The New York Times: Justices Ask if Health Law Is Viable Without Mandate
The issue before the justices on Wednesday took on practical urgency after some of the questioning on Tuesday suggested that the law’s core provision, often called the individual mandate, may be in peril. It requires most Americans to obtain insurance or pay a penalty (Liptak, 3/28).

The Washington Post: On Health-Care Hearing's Last Day, Court Weighs Severability, Medicaid Expansion 
Paul Clement, a former solicitor general representing the 26 states that are challenging the law, argued that if the law's mandate for people to buy health insurance is declared unconstitutional, the rest of the health-care law must be rejected as well. Congress would never have adopted the law's other major structural reforms to the health-care system without the individual mandate, he told the justices. ... Clement repeatedly tried to make the case that key insurance regulations, which even the administration agrees would have to be struck along with the mandate, are central to the functioning of the law's other major features — including the state-run "exchanges" (Aizenman and Barnes, 3/28).

Boston Globe: Court Focuses On Parts Of Health Law Without Mandate
Deputy Solicitor General Edwin Kneedler, representing the government, argued that the key provision of the law linked to the insurance mandate – making insurance companies cover all patients, including those with preexisting medical conditions – could not work without the mandate, but that the rest of the law should stand. Justice Ruth Bader Ginsburg ... repeatedly pointed out the vast requirements of the law that have nothing to do with the individual mandate – everything from tax credits for small businesses to increase their subsidies for employees' health insurance to making chain restaurants disclose the calorie counts of standard menu items (Jan, 3/28).

Reuters: Supreme Court Struggles With Entire Healthcare Law's Fate
At the end of a 90-minute session, no clear consensus emerged for the fate of the entire law should the justices decide to void its key provision - the mandate that most Americans obtain medical insurance by 2014 or face a penalty. ... The four liberal justices were skeptical about tossing out the sweeping law that has hundreds of other provisions aimed at stemming soaring healthcare costs and expanding coverage - some of which are already in effect. ... And one of the other conservatives on the court, Justice Antonin Scalia, made clear that he believed if the justices strike down the individual mandate, the entire law must go. "My approach would be if you take the heart out of the statute, the statute is gone" (Vincini and Biskupic, 3/28). 

The Associated Press: Some Justices Seem Open To Saving Parts Of Law
Several Supreme Court justices seemed receptive Wednesday to the idea that portions of President Barack Obama's health care law can survive even if the court declares the centerpiece unconstitutional. On the third and last day of arguments, the justices seemed skeptical of the position taken by Paul Clement, a lawyer for 26 states seeking to have the Patient Protection and Affordable Care Act tossed out in its entirety (Sherman and Yost, 3/28).

Bloomberg: Some Justices Suggest Preserving Part of Health-Care Law
Chief Justice John Roberts and Justice Ruth Bader Ginsburg ... said the law includes items, such as reauthorizing black-lung benefits and an Indian health-care measure, that aren't related to the individual health insurance mandate. ... If the court strikes down the requirement to have health coverage, insurance companies want the justices also to toss out provisions that forbid them from refusing coverage or charging higher premiums based on pre-existing conditions. Justice Elena Kagan said there was a "sharp dividing line" between those provisions and the other parts of the law. ... Still, Justice Anthony Kennedy questioned whether it would be a "more extreme" exercise of judicial power to strike down some of the statute rather than all of it (Stohr and Asseo, 3/28).

ABC News: Supreme Court: Can Health Act Survive Without Mandate?
Kneedler rejected the "sweeping proposition" of the challengers who contend that the entire health care law should fall. Justice Antonin Scalia was not convinced. "If you take the heart out of the statute, the statute is gone," he said. But other justices probed the ways they could rule (De Vogue, 3/28).

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