With oral arguments complete, New Jersey business leaders are now playing wait-and-speculate as the Supreme Court justices prepare to deliberate on the constitutionality of the Affordable Care Act.
The most interesting argument to many observers was about the individual mandate clause, which requires individuals to purchase health insurance. Justice Antonin Scalia asked whether, if Congress could require people to purchase health care insurance, it also could require people to purchase broccoli, because it also is good for people.
“I thought that Justice Scalia really misunderstood the health care market,” said Elizabeth Ryan, president and CEO of the New Jersey Hospital Association. “If I had the chance to speak to him, I would say there is no market for the uninsured — that’s the problem. That’s a fundamental problem, and the rest of society is bearing that cost.”
“The more liberal justices seemed willing to accept the government’s argument that the health care market is unique and that, because it’s different from every other market, the mandate is simply necessary to allow the regulation of health insurance to work,” said John Jacobi, faculty director of the Center for Health and Pharmaceutical Law and Policy at Seton Hall Law. “It’s very interesting to listen to, in the first argument … how hard justices are pushing the solicitor general to give them a limiting principle.
“They’re always more comfortable with a doctrine if they can see how it will play out in the future, and judge how disruptive it will be to accept someone’s argument,” Jacobi added.
Ryan said she’s more optimistic on the survival of the law than most of the national television pundits, adding that she was encouraged that Justice Anthony Kennedy, considered to be the swing vote by many observers, seemed intrigued by the federal government’s individual mandate arguments.
Stephen Timoni, an attorney with K&L Gates LLC who represents several health care providers, said he’s skeptical that the law will survive, and said he was surprised by Justice Ruth Bader Ginsburg‘s question on whether the statute could be salvaged without the individual mandate, or if it would need to be redone completely.
“Obviously, we need health care reform. I think people on both sides of the aisle would agree with that … the system is broke,” Timoni said. “I think at the very least there will be a push to salvage some parts of the law, maybe with respect to pricing and delivery of health care, that isn’t necessarily driven by a mandate.”
“I think people are missing the bigger picture, that regardless of what happens … it doesn’t mean an automatic repeal of the law, and it doesn’t mean that we’re not going to have to do something,” said Amy Mansue, president and CEO of Children’s Specialized Hospital. “There’s still 54 million people who are uninsured, and we still have a system that is unsustainable. … If not this, what is the solution?”
“Oral arguments are just oral arguments, and justices are asking questions because they want to try things out, they want to hear what the advocates have to say about the possible limits of their arguments,” Jacobi said. “The arguments were simply extraordinary, and they revealed a level of openness and suggestions of possible changes in the way the court considers the relationship between the federal government and individuals, and between the federal government and the states, in ways we just haven’t considered before.”