Health system reform: Abstract debate inside Supreme Court as protest signs dominate outside

Washington Away from the emotional atmosphere outside the U.S. Supreme Court, justices in their three days of oral arguments on the national health system reform law focused on the constitutional and legal issues. Philosophical discussions among the justices about markets, mandates and tax code were more common than talk of patients, preexisting conditions and access to medical care.

The heart of the justices’ review was the law’s individual mandate, the provision requiring nearly all Americans to obtain insurance by 2014 or pay a penalty. That was the primary line of attack by states and employers that want to see the statute overturned, and justices in their questioning appeared evenly split along ideological lines on whether the federal government can compel the purchase of a commercial product.

“The question is when you are born, and you don’t have insurance, and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily ... entered this particular market?” Justice Stephen Breyer asked Michael Carvin, an attorney representing businesses challenging the law. The Obama administration argued exactly that, saying uninsured individuals’ effect on the market is such a unique one that it gives the federal government the power to require coverage as part of its ability to regulate interstate commerce.

But Chief Justice John Roberts and other conservative justices appeared sympathetic to the states’ and employers’ arguments that Congress went too far, forcing people to buy a product they don’t want and might not need just so it can regulate the market.

“It’s critical how you define the market,” Roberts said to U.S. Solicitor General Donald Verrilli Jr., who argued for the administration. “If I understand the law, the policies that you’re requiring people to purchase must contain provision for maternity and newborn care, pediatric services and substance abuse treatment. It seems to me that you cannot say that everybody is going to need” those services.

Verrilli replied that Congress has the latitude to set a minimum coverage provision. “This is not a market in which you can say that there is an immutable class of healthy people who are being forced to subsidize the unhealthy,” he said. “This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day, and that is a fundamental difference.”

Arguing the limits of federal power

Justices cited several direct health care examples in trying to determine if the government can regulate the health insurance market to this degree, but they took a wider philosophical view of what upholding the individual mandate would mean. Conservative justices grilled Verrilli on whether allowing Congress to require the purchase of insurance also would allow lawmakers to require people to buy cell phones, electric cars, burial insurance or broccoli.

Some justices, however, did pose questions related specifically to medical care and patient access.

Justice Sonia Sotomayor used the hypothetical of a parent who took a child to an emergency department and was turned away for lack of insurance. “Do you think there’s a large percentage of the American population who would stand for the death of that child?” she asked.

Carvin responded that such an argument was not representative of what’s at stake in the case. “One of the more pernicious, misleading impressions that the government has made is ... this alternative that they’ve hypothesized is going to be enforced by throwing people out of emergency rooms.”

If the justices are indeed split on the mandate, the potential deciding vote could be Justice Anthony Kennedy. He spent most of the second day of arguments challenging Verrilli’s position, suggesting at one point that the federal government faced a “heavy burden of justification” for the mandate. But he softened his stance at the end, stating that “if most questions in life are matters of degree, in the insurance and health care world ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”

The individual mandate was one of four questions facing the court on health reform. The first involved a tax law that could preclude the court considering the individual mandate until after it takes effect in 2014, but the justices appeared skeptical that it applies. Another session discussed whether the remainder of the law could stay in effect if the court rules the individual mandate unconstitutional; most justices appeared inclined to leave the question of whether to revisit the statute largely up to Congress in that event, but some related mandates on insurers might need to be struck down, they indicated.

The states, represented by attorney Paul Clement, also targeted the reform law’s Medicaid expansion. He argued that by making all federal Medicaid funds conditional on a state’s agreeing to pay for a portion of the expansion, the federal government was engaging in coercion. As with the individual mandate, the justices largely seemed split along ideological lines on the question. If the court makes an unprecedented ruling on this issue in favor of the states, the administration warns that the entire Medicaid program — and many other federal-state programs — could be rendered invalid.

A different scene outside

The Supreme Court’s relatively dispassionate discussions of market regulation were in stark contrast to the crowds outside the court during the three days of arguments. Demonstrators for and against the reform law crowded the narrow sidewalk below the court steps, marching, waving signs and chanting about an issue that for many was deeply personal.

Many physicians opposed the health reform law’s enactment and want to see it overturned. But dozens of doctors, most wearing white coats, spoke with one voice about why justices must uphold the law.

Alice Chen, MD, an internist from Los Angeles and executive director of the pro-reform-law group Doctors for America, said she is tired of seeing patients struggle with medical costs because they don’t have access to affordable health insurance. “This is not about politics; this is about people.”

Other physicians spoke about the millions of patients who already are benefiting from the law’s provisions. Several patients with serious preexisting conditions spoke about how they will lose access to needed coverage if the law is overturned. Reform law opponents, many of whom said they were organized by the Tea Party Patriots, decried the law as an affront to personal liberties and the U.S. Constitution, and labeled it socialized medicine.

Michael Newman, MD, a Washington internist among the crowd, said most doctors recognize that the health system needs to be fixed no matter where they stand on the reform law. “Physicians need to participate in the conversation regardless of what the Supreme Court decides.”

For American Medical Student Assn. Fellow Colin McCluney, being outside the high court during the hearings was about more than experiencing the excitement. McCluney plans to go into primary care and is thinking about his future patients.

“I want to work in a system where I can focus on patients,” he said. “I want them all to have access to the incredible care that’s available in this country. I don’t think this law means that we’re done, I think this is a step to a just and equitable system.”

The justices are expected to rule by the end of June on whether the health reform law can proceed.