Washington — Inside the Supreme Court on Monday, the justices appeared to be in rare agreement on the rejection of a technical issue that could stall consideration of the constitutionality of the federal health reform law.
Outside the court, there was no agreement at all as protesters from across the nation demonstrated for and against the Patient Protection and Affordable Care Act.
“I find it shameful that this country does not provide health care for everyone,” said Mary Hunt, who traveled with a church group from New Haven to wave a placard on the Supreme Court steps that said, “People of Faith for Health Care.”
Others carried signs in protest of the 2010 health care law, including one that said, “Doctors’ offices are not a natural resource.” Several protesters hoisted a symbol adopted by Tea Party activists: a bright yellow banner emblazoned with a black snake and the motto “Don’t tread on me.”
There were protesters who chanted, “We love Obamacare.” Others stood mutely, mouths covered with red tape and the word, “life.”
Inside, the high court heard the first of three days of oral arguments, more time than has been scheduled for any case in more than a generation. Twenty-six states and the National Federation of Independent Business have challenged the constitutionality of the health care law, and arguments this week are expected to center on the act’s requirement that nearly all Americans have health insurance — the so-called individual mandate — and ability of the federal government to require states to expand Medicaid eligibility, a portion of which the states must ultimately fund.
Monday’s arguments addressed a more technical matter: if a 1867 law should bar them from even considering whether the health care act can require Americans to purchase health insurance. Every justice except Clarence Thomas asked questions.
The Anti-Injunction Act prohibits all challenges to a tax before it is imposed. The health care act’s individual coverage mandate has been called a tax by some because it would impose a penalty on those who don’t have health insurance. But the mandate won’t take effect until 2014.
“The Anti-Injunction Act says you must pay the tax first, then litigate,” said Robert A. Long, a Washington lawyer. A federal court of appeals in Richmond, Va., agreed that the Anti-Injunction Act barred consideration of the merits of the health-care overhaul.
Long was appointed to argue on behalf of the 4th Circuit Court of Appeals because neither the Obama administration nor the law’s challengers agree with the court’s decision.
Several justices were skeptical of Long’s argument.
“You keep saying it is a tax,” said Justice Stephen G. Breyer. “But they call it a penalty, not a tax, for a reason.”
Rep. Joe Courtney, D-2nd District, said the Supreme Court needs to decide the constitutionality of the law now, rather than wait for another challenge when the mandate is implemented in 2014, to end uncertainty.
“This thing needs to get decided,” Courtney said.
One key aspect of the new law, the requirement that states set up insurance exchanges to give health care consumers more choice, has been stalled in many states by the uncertainty caused by the legal challenge to the law, Courtney said.
“The cloud over the law because of the appeal has hindered things,” Courtney said.
Over the weekend, dozens of people camped out for the chance to hear the arguments of the historic case.
Sen. Richard Blumenthal, D-Conn., was one of a handful of lawmakers who managed to snare a seat for Monday’s oral arguments, considered one of the hottest tickets in town.
But Blumenthal, a former U.S. Supreme Court clerk and Connecticut attorney general who now sits on the Senate Judiciary Committee, did not camp out. He was given a pass by Sen. Patrick Leahy, D-Vt., who as head of the Senate Judiciary Committee was given a courtesy seat.
Blumenthal said the first day of the case was “fascinating” and “exciting.”
He believes the justices want to make a decision on the constitutionality of the Affordable Care Act.
“I think they are going to look at the (legality) of the act and uphold it,” Blumenthal said.
The high court will continue to hear arguments in the case Tuesday and Wednesday .
Connecticut’s health insurers, including Aetna, Anthem Blue Cross and Blue Shield, and Cigna, will be watching closely.
In an amicus brief, the nation’s health insurers have asked the Supreme Court to free them from some of the Affordable Care Act’s reform if the mandate is judged unconstitutional.
Chief among the reforms the insurers want to shed is the one that requires them to cover every American, including those with pre-existing health conditions. The insurers argue that without a mandate, which would draw young, healthy people into their risk pools, they can’t afford the other reforms.
But insurers have been careful to avoid weighing in on the constitutionality of the Affordable Care Act or its coverage mandate.
The Supreme Court is expected to issue a decision in the case by late June.
David Weaver, a social worker from Bloomfield, Conn., who was part of the crowd outside the high court on Monday, said he hopes the justices uphold the law.
“My job is working with low-income people, and they need medical care,” he said.