Individual mandate appears to be at risk
One thing became very clear during this week's legal challenges -- the provision that almost all adult Americans have health insurance or face a financial penalty may be in jeopardy.
Robert Field, a professor of law in the department of health management and policy at Drexel University's School of Public Health, said the individual mandate seems at greater risk than it did prior to this week's arguments before the court.
"One of the interesting aspects of the oral arguments is -- this one anyway -- it's more important what the justices revealed to us than what the lawyers revealed to the justices," Field said.
Regarding Justice Kennedy, considered the swing vote, Field said: "Based on [Tuesday's arguments], I predict he would rule against it [the mandate]. Of course, I have to preface that by saying that predictions are always dangerous."
He added, however, "I would predict that they will not rule against the act as a whole. There's just too much there that is clearly unrelated to the mandate."
Landers thinks the mandate itself might survive. "I don't think all bets are off yet," she said. "Reports of its demise are premature."
Supporters of the individual mandate argue that without the requirement that people have insurance coverage while they're healthy, there won't be enough money in the risk pool to pay to take care of them when the need for health care eventually -- and inevitably -- arises.
No agreement on whether the law can survive without mandate
Landers believes that even if the individual mandate were to fall, the rest of the law will still stand.
"Both Justice Kennedy and Chief Justice Roberts made this point each a couple of times during the arguments: there has to be deference to Congress, and the court is not in the place of second-guessing the alternatives Congress has chosen," she said. "The court overturning a congressional statute is a big deal."
But Northwestern's Presser suggested that if the individual mandate is thrown out, some of the court's four liberal justices might join with the conservatives in voting against the whole act.
The Affordable Care Act has been controversial since it was passed by Congress and signed by President Barack Obama in March 2010. Numerous polls have found that Americans especially don't like the individual mandate. But a recent Harris Interactive/HealthDay poll found that people are starting to accept certain key provisions of the law -- such as the ban on insurance companies turning away applicants with preexisting health problems.
On Wednesday, the court debated whether the health-reform law could function without the individual mandate. Justice Scalia referred to it as the "heart" of the statute. And if the mandate were ruled unconstitutional, Justice Ginsburg said the court would be left with a choice between "a wrecking operation" and "a salvage job," The New York Times reported.
But Landers said that the law's three mechanisms to insure more Americans -- the individual mandate, the expansion of Medicaid, and the government-run insurance exchanges -- don't depend on one another.
"Would it be better if all three worked in tandem? Yes," she said. "Does it totally undermine what Congress is trying to do if one piece of it falls out? No."
Drexel's Field said "the guts of the health reform plan are really the guaranteed issue provision -- that insurers can't deny coverage for preexisting conditions -- and the community-rating provision saying that they have to charge rates that are spread out over the community."
As for the Medicaid expansion, Landers and Magarian believe that it's safe, unless the entire law is ruled unconstitutional.
"Well, I don't want to say that, because a couple of months ago I would have said the mandate is fairly invulnerable," Field noted. "But I think the Medicaid expansion rests on stronger ground. For one thing, it's been upheld by every single lower court that's considered the issue."