Legal Experts Offer Predictions on Fate of Health-Reform Legislation

Provision that adults must have insurance seen at risk during Supreme Court review, but maybe not the whole law

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By Lisa Esposito
HealthDay Reporter

THURSDAY, March 29 (HealthDay News) -- Now comes the hard part.

Following three days of arguments that ended Wednesday over the constitutionality of the health-reform legislation passed by Congress in 2010, the nine justices of the U.S. Supreme Court will settle in to decide whether the entire law -- or key provisions -- can stand.

Their decision is expected in June.

Equally hard is trying to predict just how the justices -- typically described as four conservatives, four liberals and one "swing" member -- will vote on the polarizing legislation.

Twenty-six states have challenged the constitutionality of the law, primarily over two provisions -- a requirement that most adults have health insurance by 2014 or face a penalty, and an expansion of Medicaid, the government-run insurance program for lower-income individuals.

Arguments over those provisions dominated much of this week's hearing before the high court.

"It's very hard to tell what can happen as a result of the oral arguments. [Justice Samuel] Alito has moved firmly into my 'no' vote column. But I think [Chief Justice John] Roberts and [Justice Anthony] Kennedy are still possible votes to uphold the statute," said Renee Landers, a professor at Suffolk University Law School in Boston, who wrote a recent commentary on the law in the New England Journal of Medicine.

"I think we learned from the oral arguments that definitely the four Democratic appointees -- [Justice Ruth Bader] Ginsburg, [Justice Stephen] Breyer, [Justice Sonia] Sotomayor and [Justice Elena] Kagan -- will definitely vote to uphold every part of the statute," she said.

But another legal expert said it can be risky to read too much into what the justices had to say this week.

"Before the arguments started, if you asked me my prediction, I would have told you that I thought it would be a very close case and I would put my money on the court upholding the law by a 5-4 decision -- and that's still what I would say," said Gregory Magarian, a professor at Washington University School of Law in St. Louis.

Still, Magarian had this caution: "It's hard to look at it and say it's a slam-dunk that they're going to uphold the thing."

Even before this week's arguments, Stephen Presser, a professor of legal history at Northwestern University School of Law, predicted that the Supreme Court would find the health-reform law unconstitutional.

Now, "it's even more likely than I thought it was before," Presser said. "What we've got is five justices, ones we suspected -- Roberts, Alito, Scalia, [Clarence] Thomas and Kennedy -- all expressing skepticism and, indeed, all five perhaps hinting that throwing out the whole Affordable Care Act is the right move in this case," he added.

"The clear message is that the 10th Amendment [which concerns the division of powers between the federal and state governments] still has some teeth," Presser said.

Allison Orr Larsen, an assistant professor of law at the College of William & Mary in Williamsburg, Va., said she expected the hearings to be "spirited and lengthy" and she wasn't disappointed. But, she added, "What seems like a surprise is that the press should be calling [the court's decision] already, which seems a dubious endeavor. It's hard to predict Supreme Court opinions based on oral arguments alone."

The Patient Protection and Affordable Care Act is the most ambitious government health-care initiative since the Medicare and Medicaid programs of the 1960s. Key provisions of the 2,409-page law include:

  • The so-called -- and highly controversial -- individual mandate, which requires almost all adults to have health insurance by 2014 or pay a penalty. Up to 16 million people are projected to join the rolls of the insured under the mandate.
  • Medicaid expansion. This would increase eligibility to all people under age 65 with annual incomes up to 133 percent of the federal poverty level -- about $14,850 for a single adult and $30,650 for a family of four in 2012. Another 16 million people are estimated to gain insurance under the expansion. The 26 states challenging the law contend that this expansion is a coercive move by the federal government and one that states can't afford.
  • State-run insurance exchanges. They will be created to help small businesses and individuals buy insurance through a more organized and competitive market.

Individual mandate appears to be at risk