Legal Experts See a Close Win for Health-Reform Law

But the Supreme Court could delay any decision for several years, the law professors added

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By Dennis Thompson
HealthDay Reporter

THURSDAY, March 22 (HealthDay News) -- The U.S. Supreme Court seems likely to uphold the sweeping health-reform legislation known as the Affordable Care Act when it takes up the case next week, according to a small survey of legal experts.

The experts base this prediction on a number of factors linked to the nine justices' legal history, political considerations and the constitutional questions raised by the case itself.

"The folks [26 states] who are challenging the act have somewhat of an uphill battle," said Gregory Magarian, a professor at Washington University Law School in St. Louis. "It's been some time since the court has struck down a major piece of federal legislation on the theory that it exceeds Congress' constitutional authority."

The major argument over the constitutionality of the law -- passed by Congress and signed by President Barack Obama in March 2010 -- centers on the so-called individual mandate. That's the piece of the Affordable Care Act that requires most adults in the United States to have some sort of health insurance or face a fine.

The individual mandate offers the law's opponents fodder for debate, Magarian said, because it requires people to purchase health insurance whether they want it or not.

"That's something the federal government has never exactly done before," he said.

State governments have made related requirements of people -- auto insurance being the most prominent example. But even a requirement to purchase auto insurance isn't universal.

"You can avoid buying auto insurance by not having a car," Magarian said. "Being alive is what triggers the requirement for health insurance."

But, many of the legal experts surveyed believe the justices will conclude that the individual mandate falls squarely within the confines of the Commerce Clause, the part of the U.S. Constitution that gives Congress the right to govern interstate economic activity.

"There really is an interstate commercial effect of not having a federal health-care policy," said Leslie Meltzer Henry, an assistant professor at the University of Maryland School of Law. "In the absence of federal intervention in this area, individuals who desperately need insurance can't get it."

The law professors said the individual mandate is needed to make many of the Affordable Care Act's provisions work. For example, insurance companies that will be required to cover everyone -- even people with preexisting health conditions -- can only survive financially if most adults are required to buy health coverage, whether they are healthy or sick. That will ensure there's enough money in the risk pool.

Neil Siegel, a professor of law and political science at Duke University School of Law, noted that the U.S. Supreme Court has in recent years acted to limit some of Congress' powers under the Commerce Clause. But those cases involved social issues such as banning the carrying of firearms in public schools. Conversely, Congress' economic powers under the Commerce Clause have been upheld and protected by the high court, he added.

"The court has held that in issues of economic activity, Congress can act as if we have an integrated national economy," Siegel said. "Here you have economic conduct [health care] with massive interstate effects. Health care is an area of already pervasive federal regulation."

There are other considerations at work that will affect the justices' decisions, the experts said.

While the Supreme Court hasn't been shy about reversing some legislation, the experts said you have to go back to the Great Depression and President Franklin D. Roosevelt's New Deal to find an example of the High Court striking down a landmark piece of legislation as large and momentous as the Affordable Care Act.

"I think it's unlikely the court wants to create a major public or policy upheaval, which is what it would be doing if it overturned the law," said Robert Field, a professor of law in the department of health management and policy at Drexel University's School of Public Health in Philadelphia. He added that a rejection of the law could potentially have consequences for other major federal programs such as Medicare, Medicaid and Social Security.