Supreme Court sharply divided over individual mandate

Washington — On the second day of oral arguments over the constitutionality of the Affordable Care Act, a divided Supreme Court turned its attention to whether Congress had the authority to require most Americans to have health insurance.

At the center of the health care bill, the individual mandate helped persuade health insurers, including Connecticut-based companies like Aetna and Cigna, to accept other reforms on the way they do business.

The individual mandate would go into effect in 2014 if the Supreme Court does not reject it. By threatening those who don’t buy insurance with a penalty, the mandate would bring millions of uninsured into the insurance market.

The Patient Protection and Affordable Care Act also provides subsidies to help low-income Americans purchase health coverage.

Many of those newly insured Americans would be young and healthy, making it easier for insurers to meet another health care law reform — the requirement that they offer coverage to all Americans, even those with pre-existing health conditions.

But attorneys for the National Federation of Independent Business and the 26 states that challenged the health care act argued that Congress overreached in mandating insurance coverage.

Michael A. Carvin, an attorney who argued the case for the independent business federation, said Congress “is forcing people for paternalistic reasons,” to buy insurance, exceeding its power.

Conservative Justices Antonin Scalia and Samuel Alito were sympathetic to that argument.

“If the government can do that, what else can it do?” Scalia asked.

Could Congress could also require individuals to buy broccoli or gym memberships to force Americans to lead healthier livestyles? Scalia asked.

But the liberal members of the court, Justices Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan seemed to agree with Solicitor General Donald Verrilli Jr.

Verrilli argued that Congress has the authority to impose an individual mandate under the Constitution’s Commerce Clause, which governs interstate commerce.

Some justices said there should be a fix for the cost shifting that occurs under the current health care system. With 40 million Americans uninsured — nearly 400,000 of them in Connecticut — many patients leave huge medical bill unpaid.

That forces hospitals and doctors to raise the cost of medicine and health insurers to raise premiums.

“The people who don’t participate in the market make it more difficult for people who do,” Ginsburg said.

Chief Justice John Roberts and Justice Anthony Kennedy, who could be decisive swing votes, were harder to read.

At one point Roberts also wondered that if Congress forced people to buy insurance, “What is next?”

But he disagreed with attorneys arguing against the law that there are those who don’t need health care coverage so Congress should not invoke the Commerce Clause.

“Everyone is in this market,” Roberts said.

Rep. Chris Murphy, D-5^th District, who is seeking the Democratic nomination for U.S. Senate, said if the Supreme Court overturns the health care act, “it would be a purely political decision.”

“It would be a radical rewrite of the Commerce Clause to suggest Congress does not have the authority to regulate health care,” he said.

The American Health Insurance Plans, a Washington-based trade association representing the nation’s health insurers, has asked the Supreme Court to toss out other reforms if they rule the individual mandate unconstitutional.

“Eight states enacted various (reforms) in the 1990s without covering everyone, and these reforms resulted in a rise in insurance premiums, a reduction of individual insurance enrollment and no significant decrease in the number of uninsured,” AHIP President Karen Ignagni said.

On Wednesday Verrilli will ask the Supreme Court to sever some of the ACA’s reforms if the court throws out the mandate.

Mickey Herbert, former CEO of ConnectiCare, said it’s “pretty critical” for the insurance industry to have the individual mandate remain part of the law.

Without a mandate, there are still ways to encourage people to buy coverage, he said. Those include strongly encouraging people to sign up when they get their driver’s licenses renewed, automatically enrolling people and letting them opt out, or requiring that people who don’t get coverage when they’re first eligible pay higher premiums if they sign up later — something Medicare does.

Herbert also said that nothing would prevent Connecticut from imposing its own individual mandate, as Massachusetts did, if the federal law is struck down. But the loss of federal funding for people to buy insurance could make expanding coverage in Connecticut far more difficult, he said.

Others, however, don’t see the individual mandate as critical to health reform.

Ellen Andrews, executive director of the Connecticut Health Policy Project, said that even with a mandate, there will have to be efforts to ensure that everyone enrolls in an insurance plan. She noted that not everyone who qualifies for Medicaid in Connecticut, which people can get for free, sign up, and that any coverage expansion, mandated or not, will require a major marketing effort.

Some portions of the health reform law have already been implemented and could go forward without the mandate, said state Healthcare Advocate Victoria Veltri.

They include a limit on the amount of money insurers can spend on costs unrelated to medical care or quality improvement, and the elimination of lifetime benefit limits in insurance plans.

But she said losing the mandate would make other key provisions difficult.

“We would have to come up with some very creative ways to entice people into coverage,” she said.

But state Sen. Andrew Roraback, a Goshen Republican who is running for Congress, said he thinks the law is unconstitutional, and that if the mandate is struck down, the rest of the law will not stand. In that case, the law wouldn’t achieve its goal of covering nearly all Americans, and the government wouldn’t get the revenue from penalties paid by people who don’t get insurance.

“When those two things are stripped away, the program becomes a two-legged stool,” he said.

Jeannette DeJesús, special adviser to the governor for health reform, called the individual mandate “the linchpin” of the health law. If the court were to deem the law unconstitutional, she said, the effect on Connecticut would depend whether the ruling struck down the entire law, including subsidies to buy coverage, or more narrowly prohibited the mandate, which would be challenging to insurers but could allow other reforms to take place.

If the whole law were struck down?

“There’s no doubt that we would continue in our efforts to reform health systems here in the state, but we would return to a more incremental approach,” she said. “We really need large-scale sweeping transformations in order to address this more effectively for folks. It would be a setback, but we will have to find a way to move forward.”

The Supreme Court is expected to issue a decision on the constitutionality of the Affordable Care Act in June.