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By DENIS WILSON, a freelance writer in Philadelphia

With an unprecedented three days of hearings, demonstrating protestors and a nation's health care future hanging in the balance, the Supreme Court had its most hotly contested case in years -- reviewing the Obama Administration's Patient Protection and Affordable Care Act.

However, justices were skeptical that penalties for individuals who did not buy health care could be considered taxes. With the interest of making a decision now, rather than waiting until 2014 when many of the new regulations will go into effect, both detractors and advocates of the overall legislation argued that the Anti-Injunction Act did not apply.

Things heated up on day two. A major focal point of the hearings was the constitutionality of the individual mandate, a provision in which individuals not covered by employer- or government-sponsored insurance plans would need to purchase health care insurance coverage or else face penalties. Pulling this linchpin piece of the legislation would essentially quash funding for the overall health care law.

Arguing in favor of health reform, U.S. Solicitor General Donald Verrilli claimed that the Commerce Clause of the Constitution gives the government the power to enact the individual mandate. However, representing Florida and the 26 states opposing the law, Attorney Paul Clement argued otherwise. "The Commerce Clause gives Congress the power to regulate existing commerce, it does not give Congress the far greater power to compel people to enter commerce, to create commerce, essentially, in the first place," said Clement.

Clement questioned whether giving Congress the power to compel people to purchase insurance has any limiting principle. In other words, if the government can force the public to buy insurance, what else can it compel the people to purchase in order to maintain affordability for the population at large?

During the hearings, broccoli was raised as an example of what, if this logic is continued, the government could conceivably compel the public to buy. The justices are left with the question of whether the health care market is unique enough to warrant this unique congressional power.

While the constitutionality of the individual mandate is left in the hands of the court, the major question mark for employers is whether the rest of the law will stand without the individual mandate. This issue of the severability was the topic of hearings on Wednesday.

"I have no idea how they're going to rule, but if the individual mandate is found unconstitutional, it's hard to keep some of the other provisions," said Steve Wojcik, vice president of public policy at the National Business Group on Health. With the individual mandate, more people entering the health insurance pool would effectively bring insurance rates down, or slow rate increases, and offset other costs of reform. If on the other hand, the individual mandate falls and no offsetting of costs occurs, employer responsibilities will become increasingly high.

"From the employers' perspective, if the individual mandate goes down, we would hope somehow the employer mandate would go down too," said Wojcik. More of the legislation should have been devoted to cost-cutting measures, he said, because the important issue is whether employers and society will be able to afford the health care that the law calls for.

In January, the trade association America's Health Insurance Plans and the Blue Cross Blue Shield Association expressed their positions on the topic of severability, arguing that "certain insurance market reforms in the Affordable Care Act are inextricably linked to the law's personal coverage requirement and have to be severed from the ACA if the Court finds the coverage requirement unconstitutional."

For AHIP and BCBSA, "delinking major provisions of the law that were widely understood to be companion solutions as the nation debated health care reform" has practical implications for consumers and providers. For example, the new health care law forbids insurers to refuse coverage on the basis of "pre-existing conditions."

Without the individual mandate, AHIP and BCBSA argue that the reform cannot function as Congress had intended and that several provisions should be severed.

Despite the problematic nature of severability, the court was not keen on the idea of scrapping the entire law, expressing doubt in the legislative branch's ability to quickly bring new legislation to the table. With the economy still shaky, it's not likely that the public will have the stomach to start this process from scratch.

Also on the docket on Wednesday was the question of whether Congress has the authority to require states to expand eligibility for Medicaid. The law would extend Medicaid eligibility to individuals with income up to 133 percent of the U.S. poverty level.

Though less attention was given to the issue of whether states are being "coerced" by the federal government to expand their share of Medicaid costs, it recalls an ongoing and important debate about federalism versus states' rights.

But for now we'll have to continue to speculate on the fate of Obamacare, as actual rulings by the court aren't likely for several months.

April 2, 2012

Copyright 2012© LRP Publications