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    Court appears split on future of health law if mandate is out

    Questions focus on expanded care not cited in case

    The Supreme Court heard oral arguments in March about whether the many elements of President Obama's signature health care law can be considered separately, or whether the constitutionality of the law must be judged on an all-or-nothing basis. Here are some of the session's most notable excerpts, with analysis by health care and legal experts.

    All or nothing
    The line of questioning from some justices suggested that if the court deems the law's requirement that every American have health insurance unconstitutional, it will strike down the entire legislation.
    Justice Antonin Scalia
    Have we ever — most of our severability cases, you know, involve one little aspect of the act. ... When have we ever really struck down what was the main purpose of the act, and left the rest in effect?
    Deputy Solicitor General Edwin S. Kneedler, representing the administration
    There is no example —
    Justice Scalia
    There is no example. This is really —
    To our — to our — that we have found that suggests the contrary.
    Justice Scalia
    This is really a case of first impression. I don't know another case where we have been confronted with this — with this decision. Can you take out the heart of the act and leave everything else in place? ...
    Chief Justice John Roberts
    The problem is, straight from the title we have two complementary purposes, patient protection and affordable care. And you can't look at something and say, 'This promotes affordable care; therefore, it's consistent with Congress's intent.' Because Congress had a balanced intent. You can't look at another provision and say, 'This promotes patient protection' without asking if it's affordable. So, it seems to me, 'What is going to promote Congress's purpose?' That's just an inquiry that you can't carry out.
    Hear the exchange:
    Brian T. Fitzpatrick, professor at Vanderbilt Law School
    I thought going into it, there was a very small chance they would strike the whole thing down, but after listening to the argument, I came away thinking there is a better chance of that happening than I had earlier anticipated. It was hard for me until the argument to really appreciate how difficult a job it is to go through such a large bill and try to figure out provision by provision what is too closely tied to the individual mandate and what is not, or what Congress would have wanted or what Congress wouldn't have wanted. It's a Herculean task.
    Separate pieces
    Other justices' inquiries indicated some elements of the health care law should stand, even if the court rules that the individual mandate is unconstitutional.
    Justice Ruth Bader Ginsburg
    There are so many things in this act that are unquestionably OK. ... So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job? And the more conservative approach would be salvage rather than throwing out everything. ...
    Justice Sonia Sotomayor
    If we strike down one provision, we are not taking that power away from Congress. Congress could look at it without the mandatory coverage provision and say, this model doesn't work; let's start from the beginning. Or it could choose to fix what it has. We are not declaring — one portion doesn't force Congress into any path.
    Hear the exchange:
    Stuart Altman, health care economics and policy expert at Brandeis University
    I don't think there's any question you can maintain much of the rest of the law without the individual mandate. The only part that's really linked very heavily to it is the issue about private insurance companies making available health care coverage without any restrictions on preexisting conditions. That issue is really tied up in the individual mandate. ... The other parts of the law really can stand, and my sense is that the legal arguments against the other parts of the law are much weaker.
    If the entire law falls
    Government lawyers argued that millions of Americans who already benefit from the health care law's reforms would be harmed if the Supreme Court struck down all aspects of the law.
    Kneedler, deputy solicitor general
    We have very important indications from the structure of this act that the whole thing is not supposed to fall. The most basic one is, the notion that Congress would have intended the whole act to fall if there couldn't be a minimum coverage provision is refuted by the fact that there are many, many provisions of this act already in effect without a minimum coverage provision. Two points — two-and-a-half million people under 26 have gotten insurance by one of the insurance requirements. ... Congress made many changes to Medicare rates that have gone into effect for the Congress — for the courts to have to unwind millions of Medicare reimbursement rates. Medicare has covered 32 million insurance preventive care visits by patients as a result of this act.
    Hear the exchange:
    Sally C. Pipes, president and CEO of the Pacific Research Institute and author of "The Truth About Obamacare"
    If there isn't an individual mandate, the cost of insurance is going to go up, and therefore we're going to see insurance for regular people go up in price, and also universal coverage will be even less likely. ... I would hope if the justices deem the individual mandate unconstitutional, they would rule that the whole law is unconstitutional. It's the people who are young and healthy — what I call the young invincibles — they're the ones who were supposed to bring costs down for the elderly and people with preexisting conditions.
    If some of the law stands
    A Supreme Court-appointed attorney, H. Bartow Farr III, argued that if only the individual mandate falls, in keeping with a circuit court's prior ruling, the health care law can still achieve positive results. He said the court could preserve two other provisions of the law, guaranteed issue — which prohibits insurance companies from denying coverage — and community rating — which bars insurers from charging unreasonably inflated premiums to the elderly, people with preexisting conditions, and members of other communities that face exorbitant costs now. Paul D. Clement, the lead attorney challenging the law, made a counter claim that the law without a mandate would be disastrous for consumers.
    Even without the minimum coverage provision, those two provisions, guaranteed issue and community rating, will still open insurance markets to millions of people that were excluded under the prior system, and for millions of people will lower prices, which were raised high under the old system because of their poor health. So, even though the system is not going to work precisely as Congress wanted, it would certainly serve central goals that Congress had of expanding coverage for people who were unable to get coverage or unable to get it at affordable prices. [...]
    If you do not have the individual mandate to force people into the market, then community rating and guaranteed issue will cause the cost of premiums to skyrocket. We can debate the order of magnitude of that, but we can't debate that the direction will be upward.
    Hear the exchange:
    Fitzpatrick, Vanderbilt law professor
    As Justice Sotomayor noted, there's competing economic analyses of what would happen without the individual mandate. I think the court doesn't want to have to resolve those kinds of counter-factual questions. The answer may be, "We don't know what the effects will be, if we keep part of it, so maybe we should just ask Congress to start over."

    SOURCE: Supreme Court transcripts

    CALLUM BORCHERS, Monica Ulmanu and Tom Giratikanon/Globe Staff