Legal Experts See a Close Win for Health-Reform Law

[TampaYankee]

Legal Experts See a Close Win for Health-Reform Law

By Dennis Thompson

HealthDay Reporter | HealthDay

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.

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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."

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The major argument over the constitutionality of the law -- passed by Congress and signed byPresident 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 ofhealth insurance or face a fine.

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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.

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"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."

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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."

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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.

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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.

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"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.

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"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.

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But Stephen Presser, professor of legal history at Northwestern University School of Law, believes the health-reform law will be ruled unconstitutional in a narrow 5-4 decision.

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"I think [Justices Antonin] Scalia, [Clarence] Thomas, [samuel] Alito and [John] Roberts will all have to view this as Congress going much too far and virtually ignoring the 10th Amendment," Presser said. "Justices [stephen] Breyer and [Ruth Bader] Ginsburg have always been strong voices for expanded Congressional power, and Justices [Elena] Kagan and [sonia] Sotomayor are not going to embarrass the man [Obama] who appointed them, so there are four sure votes to uphold the legislation as well. That leaves only [Anthony] Kennedy as the swing vote, as most commentators, I think, understand."

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And Presser believes Kennedy will vote with the conservative justices, based on prior rulings that have argued for states' rights as the best way to preserve individual liberty. "If he follows that logic he will have to vote to overturn the ACA's individual mandate," Presser added.

Political considerations will also be in the back of the justices' minds, the experts said. The challenge to the Affordable Care Act is taking place in a presidential election year, and could strongly affect President Obama's re-election chances.

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"If the court strikes down the act," Magarian said, "all of a sudden, the left/center-left is going to be whipped into a frenzy. The path of least resistance would be to uphold the thing and let the status quo stand."

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But, some of the experts believe there's also a good chance the Supreme Court will punt on the issue, declaring that the time isn't right for judicial review of the Affordable Care Act.

"I think it's interesting they're going to spend a lot of time -- a third of oral arguments -- on whether the case is 'ripe' for judicial review," said Drexel's Field. "That could be a signal from the court that they're spending that much time on that part of the argument."

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Added Allison Orr Larsen, an assistant professor of law at the College of William & Mary in Williamsburg, Va.: "My best guess would be they don't decide it on the merits."

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The reason why: the individual mandate, which takes effect in 2014, is a form of tax, and federal law doesn't allow a legal challenge to a tax that has yet to be collected.

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"You can't challenge a tax until after you've paid it, and then you can sue for a refund," Larsen said, noting that this legal argument has come up in some lower court rulings on the law.

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Such a ruling would delay any challenge to the Affordable Care Act until 2015. This would give the Supreme Court the chance to take the issue off the table in an election year while not explicitly endorsing or scuttling the law. "That's why I think it would be an attractive option for them," Larsen said.

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Field agreed. "There's a good chance that they'll do that," he said. "The public might be left very frustrated, from not having a definitive answer, but we should be prepared for that outcome."

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All the legal observers believe that the court's reasoning will become much clearer during the three days of arguments that begin on Monday.

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"Because the hearing is going to be so long, I think we're going to come out of it with a good idea of what the justices are thinking about," Magarian said.

See the original article at:

http://news.yahoo.co...-130207955.html

[Guest EXPAT]

I hope this is true. There are so many good things about this healthcare law and I also hope that Obama gets re-elected with a democratic house and senate so they can continue what they need to do with it.

They really need to focus on the cost elements. If they just let the free market reign, it will be driven by profit and greed. That is why regulation is critical.

[Guest EXPAT]

This is a good article on the 15 things to worry about if the Affordable Care Act is repealed by SCOTUS. Let's hope that politics won't rule the day in their decision.

http://www.huffingtonpost.com/2012/04/03/affordable-care-act-repeal_n_1400009.html?ncid=edlinkusaolp00000003

Many provisions of the Affordable Care Act took effect when it was signed into law in 2010, and a full repeal would eliminate reforms that are already providing widespread relief to some Americans. Here are some consumer benefits that would disappear if the whole law were to be ruled unconstitutional:

Increased coverage of preventive services

Many health insurance plans are now subject to new rules that require them to cover recommended preventive services without charging a co-payment. As a result, consumers pay nothing for services like routine screenings, vaccines, counseling, flu shots and well-baby and well-child visits from birth to age 21.

Birth control coverage

One aspect of the preventive care coverage -- and among the most discussed provisions of the new health care law -- is the requirement that health insurance plans cover contraceptive services. After a widely publicized effort by religious leaders and Republican lawmakers to repeal this measure, the Obama administrationannounced a compromise that shifts the cost of contraceptive coverage from employers to insurance companies.

Restrictions on lifetime and annual limits

The Affordable Care Act prohibits insurers from placing lifetime limits on most benefits that consumers receive and sets a minimum for annual dollar limits. By 2014 annual dollar limits are slated to be phased out entirely.

Coverage for children with pre-existing conditions

Under the new law, insurance companies cannot deny coverage or limit benefits to children under age 19 because of a pre-existing condition or disability. Starting in 2014, people of all ages with pre-existing conditions will be protected.

Pre-Existing Condition Insurance Plan

Adults who have been refused insurance coverage because of pre-existing conditions and who have remained uninsured for at least six months are eligible for the Pre-Existing Condition Insurance Plan. The program covers primary and specialty care, prescription drugs and hospital visits without requesting higher premiums for pre-existing conditions.

No health plan barriers for ob-gyn services

Health plans cannot require women to get a referral from a primary care doctor before seeking ob-gyn services.

Access to out-of-network emergency room services

The Affordable Care Act prohibits a health plan from charging higher co-payments for emergency room visits in hospitals outside of the plan's network. Patients are also exempt from needing a plan's approval before seeking out-of-network emergency care.

Right to appeal health insurance plan decisions

Obama's health care law gives consumers the right to appeal decisions made by their health insurance providers. If an insurance company reviews its decision and still denies a consumer insurance coverage for a treatment, consumers have the right to request an external review and have an independent review organization decide whether to overturn the plan's decision. Some states have Consumer Assistance Programs that help people file appeals and request external reviews.

Consumer Assistance Program

The Affordable Care Act improves the services that some states provide to help people with insurance problems. Grants have allowed states to strengthen and grow programs that assist consumers with enrolling in a health insurance plan and with filing complaints and appeals.

More value for the insurance dollar

A provision of the law called the 80/20 rule requires insurance companies to spend at least 80 percent of their premium dollars on medical care. If they don't, they must provide consumers with refunds starting this summer.

No insurance cancellations for honest mistakes

Insurance companies are not allowed to rescind coverage when patients make honest mistakes on their insurance applications. Before the Affordable Care Act, insurance companies could retroactively cancel patients' policies because of unintentional paperwork errors with little medical bearing.

Expanded Medicare coverage

The law gives elderly adults who face the Medicare coverage gap a 50 percent discount on prescription drugs covered by Medicare Part D. Seniors will receive additional prescription drug savings until the coverage gap is closed in 2020.

Indian Health Care Improvement Act reauthorized

The law reinstates the Indian Health Care Improvement Act, which provides resources to curb the health care disparities faced by American Indians. Originally passed in 1976, the act was last reauthorized in 1992 and many of its provisions expired in 2000.

Tanning salon tax

The Affordable Care Act imposes a 10 percent tax on tanning beds, and these proceeds help underwrite other provisions of the law.

Expanded coverage for young adults on their parents’ plans

The law requires insurance plans that offer coverage of dependents to allow children to stay on their parents' plans until age 26. Adult children can be covered on their parents' plans even if they are married, eligible for work or student insurance, living away from home or financially independent.

[RA1]

Much of the above sounds wonderful except for two things: WHO is going to pay for it and HOW are they going to do so?

All the conversation about what is included and no limits does not explain at all how those "benefits" will be paid for. Saying the taxpayers is naive and, if it is the policy holders, who can afford the vastly increased premiums likely to ensue? The taxpayers already pay for those things for those without insurance. This will only increase the cost of medical services delivered. A "secondary" issue is who will be able to provide those services? Docs can only work so many hours per day and offering possibly less money will not be an incentive for them to do anything except look for other occupations or so it seems to me.

Best regards,

RA1

[TotallyOz]

TY, I am not sure sure about the article. I have my major doubts about the Supreme Court doing the right thing and the right thing isn't just what I want but what they should do according to the law. They can interpret the law any way they wish and if they do overturn this law, I wish there was a way to overturn life-time appointments to the Supreme Court. IMHO, they all should have 6 year limits.

[Guest hitoallusa]

Well I thought the supreme court is in trouble when Sonya talked about going to an Italian bakery to get snacks for the supreme court justices... I hope she paid for it and didn't use a public worker to run errands for her. Justice Brandeis worked at home because his office was too luxurious and extravagant.. I hope these justices can learn from him... One of the justices had a wedding at the US supreme court for a family member... Funny thing is that if the US falls because of that mind set of his then he will be probably forgotten and the US supreme court will be in ashes.. So he will get what he deserves in the end.. Honor means something when honor exists. Wearing a robe and working in a fancy office with a bathroom don't mean anything.