Healthcare Talking Points

As the Supreme Court considers the constitutionality of President Obama’s health-care reform, the Patient Protection and Affordable Care Act of 2010, there are some important points to remember.  The case has been polarizing for the United States: it would provide health insurance to some 32 million Americans lacking coverage, a major social accomplishment for some, but also would force people to buy insurance — an intrusion into civil liberties for others.

 

Here are four important things to keep in mind as the court weighs the case:

1 – The court may put off ruling on the case until 2014.

• During the first day of oral arguments, the justices will consider if the federal Anti-Injunction Act prevents them from deciding the case before the federal mandate takes effect in 2014.
• The Anti-Injunction Act, passed 1867, strips the court of the ability to rule on the constitutionality of a tax before that tax has been paid. The court will have to decide if the individual mandate is essentially a tax.

2 – Conservatives argue the law is “slippery slope” to broccoli mandates.

• On Tuesday, the court is expected to listen to arguments that if the government can force people to buy insurance then it can also force them to do other things like buy health foods or buy GM cars.
• Florida’s Republican Attorney General Pam Bondi and others have insisted that if the Affordable Care Act’s individual mandate is allowed to stand then the government could eventually also require people to “buy and consume broccoli at regular intervals” because it would positively impact interstate commerce by making consumers healthier.
• Others, like President’s Ronald Reagan’s former Solicitor General Charles Fried, say this slippery slope argument is “totally bogus” because the government isn’t forcing people into a market that they are not already in.
• Acting U.S. Solicitor General Neal Katyal told AFP that striking down the individual mandate, which forces Americans to purchase health insurance, would be a “grave and profound” decision.

“If the Supreme Court struck this down, I think that it wouldn’t just be about health care,” Katyal explained. “It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.”

3 – Unpopularity of health care law unlikely to effect the decision.

• According to a recent New York Times survey, President Barack Obama’s Affordable Care Act continues to be unpopular with the public, 47-38.
• The Washington Post‘s Robert Barns noted last week that public opinion was unlikely to sway the conservative-leaning court one way or the other.

“The court has shown it is unafraid to buck public opinion to protect constitutional principles, particularly in free-speech cases,” Barns wrote.

4 – Experts expect law to be upheld.

• A recent survey of former Supreme Court clerks and lawyers who have argued before the court found that over 50 percent expect the individual mandate to be upheld. Only 35 percent thought it would be struck down.

“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one responded replied. “I think the Court will uphold the statute by a lopsided majority.”

• If the court does decide that the individual mandate is unconstitutional, only 27 percent thought they they would also strike down the entire law.