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Court’s conservatives question health law’s mandate

Solicitor General Donald Verrilli Jr. argued that access to affordable health insurance is restricted because insurers discriminate against applicants with preexisting conditions.

Dana Verkouteren/Associated Press

Solicitor General Donald Verrilli Jr. argued that access to affordable health insurance is restricted because insurers discriminate against applicants with preexisting conditions.

WASHINGTON - The Supreme Court’s conservative justices raised concerns Tuesday that President Obama’s health care law could open the door for the government to compel Americans to participate in all sorts of commerce, including the mandated purchase of cellphones, gym memberships, even burial insurance.

The justices’ probing questions during the second day of hearings over the constitutionality of Obama’s signature health care overhaul served to jolt the law’s supporters from any certitude that the court would find the requirement to have health insurance does not trample on individual rights.

“The reason this is concerning is because it requires the individual to do an affirmative act,’’ said Justice Anthony Kennedy, a Republican appointee who is seen as a key swing vote. “Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in the very fundamental way.’’

The heated, at times combative exchanges spanned two hours, twice the length of normal Supreme Court arguments, highlighting the case’s historical importance. At the crux of Tuesday’s debate was whether Congress has the power to require nearly all individuals to have insurance starting in 2014, and whether it has the right to assess a financial penalty for those who refuse.

MIT economics professor Jonathan Gruber, an architect of Massachusetts’ ground-breaking health care law that made it the first state to require individuals to have insurance, said the tone of the justices’ questions left him pessimistic about the federal law’s future.

“It was not a good day. Not a good day for fans of the mandate,’’ said Gruber, who directs the health care program at the National Bureau of Economic Research and who advised Obama on the federal law. “I’m just not as confident as I was four or five hours ago.’’

Other observers said the tone of the questions did not preclude one or more of the conservative justices joining the court’s four liberals in upholding the law.

Twenty-six states and an independent business group are suing the government on the basis that the mandate threatens individual liberty by forcing people who are not insured by their employer, Medicare, or Medicaid into the insurance market.

The government argues that everyone is already in the health care market, which makes up nearly 18 percent of the economy, because everyone will need health care at some point in their lives. The mandate is necessary, the government says, to buttress the key provisions of health reform - that insurers cannot discriminate against applicants with preexisting medical conditions or charge women and the sickly prohibitively high rates for coverage.

Solicitor General Donald Verrilli Jr., representing the government, said more than 40 million uninsured Americans do not have access to affordable health insurance in part because insurers have been able to discriminate in the individual market against applicants with preexisting conditions.

In response to Kennedy’s question of whether Congress is empowered to create commerce in order to regulate it, Verrilli said virtually everyone - even the uninsured - is already in the health care market, and people generally cannot control when they will need medical care or what they will need when they enter the market, so therefore the mandate to purchase health insurance makes sense.

Chief Justice John Roberts compared that to the market for emergency services. “Police, fire, ambulance, roadside assistance, whatever - you don’t know when you’re going to need it,’’ Roberts said. “So can the government require you to buy a cellphone because that would facilitate responding when you need emergency services?’’

Justice Antonin Scalia, who likened the insurance mandate to making people join gyms to prevent health care costs from rising, disagreed with Verrilli that the government is trying to regulate the health care market.

“You’re regulating insurance,’’ Scalia said. “You’re saying that some people who are not in it must be in it and that’s different from regulating in any manner commerce that already exists out there.’’

Scalia also expressed doubts that the mandate is appropriate under the Constitution’s “necessary and proper’’ clause because it oversteps the role of the federal government and violates the sovereignty of the states.

“This may be necessary but it’s not proper because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers,’’ Scalia said. “If the government can do this, what else can it not do?’’

While many supporters of the mandate were alarmed by the justices’ examination, Massachusetts Attorney General Martha Coakley said it would be a mistake to draw conclusions from the pointed questioning.

“Sometimes justices push the hardest on questions that they’ll end up finding on the other side,’’ said Coakley, who has appeared before the court in the past. “Their job is to press the advocates before them on the outer reaches of this, and the questions are not really a good indication of how any individual judge will decide. If this court were going to be true to its roots in not being an overly activist court, they will uphold the individual mandate.’’

Justice Ruth Bader Ginsburg, appointed by a Democrat, appeared to rescue Verrilli from her colleagues’ harsh line of questioning and remarks comparing the insurance mandate to buying fuel-efficient cars and broccoli.

“I thought your main point is that, unlike food or any other market . . . what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later,’’ Ginsburg said.

In his closing argument Verrilli urged the court to uphold the individual insurance mandate - if not under the Constitution’s commerce clause, then as an exercise of Congress’s taxing authority. Even though the purpose of the penalty is not to raise revenue, the financial penalty for not carrying insurance will be assessed in spring 2015 when tax returns are due.

He also cited Massachusetts as an example of how the individual mandate could make insurance more affordable.

Douglas Hallward-Driemeier, a lawyer in Ropes & Gray LLP’s Washington office who leads the firm’s appellate and Supreme Court practice and filed an amicus brief on behalf of national HIV advocacy organizations, said the 2006 Massachusetts law has been essential to addressing the HIV epidemic. Transmission rates in the state dropped 37 percent between 2005 and 2008, he said, while nationally, they rose 8 percent. Patients with insurance are diagnosed earlier and receive the necessary drugs sooner and more consistently, he said.

Outside in the chilly morning, demonstrators jammed the sidewalks in front of the court steps. The groups were larger and more boisterous than on Monday.

“Protect our care. Protect the law,’’ chanted a circle of people supporting the law. Some dressed as the Statue of Liberty.

A woman opposing the law silently waved a hand-written poster board that said “Your pills. Your bills.’’ On the other side of the sign: “Keep your ovaries off my rosaries.’’

Nearby, a chorus of the law’s opponents reached a crescendo to rival the supporters as both groups tried to drown each other out.

On Wednesday, the final day of hearings, the court will consider whether the rest of the health care law could stand if it deems the health insurance mandate unconstitutional.

It will also weigh whether Congress’s threat to withhold federal funding for Medicaid if states don’t comply with the law’s requirement to expand the program constitutes coercion. The justices are expected to issue a ruling by late June.

Matt Viser of the Globe staff contributed to this report. Tracy Jan can be reached at tjan@globe.com. Follow her on Twitter @GlobeTracyJan.

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