Health reform law to have its day in nation’s highest court next month: Supreme Court to act
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* Charlotte Tucker

The historic 2010 health reform law designed to make health care more affordable and accessible will hang in the balance in late March, when the U.S. Supreme Court takes up questions about the constitutionality of the Patient Protection and Affordable Care Act.

The court has allotted five-and-a-half-hours over three days to hear arguments in the case, a clear sign that the justices are acutely aware of the implications of their decision. Generally, the court allots about an hour on one day to hear arguments from both sides of a case.

![Figure1](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/42/1/1.2/F1.medium.gif)

[Figure1](http://www.thenationshealth.org/content/42/1/1.2/F1)

The Supreme Court building in Washington, D.C., will host arguments in a case against the Affordable Care Act in March.

Photo by Mark Hurlburt, courtesy iStockphoto

“They consider this to be a very important case,” said Tim Jost, the Robert L. Willett Family Professor of Law at Washington and Lee University. “Since the…1930s, the Supreme Court has shown great deference to Congress in regulating the economy and spending money for the general welfare. If the Supreme Court holds that (the Affordable Care Act) is unconstitutional, it will signal an intent to dramatically cut back on the power of Congress.”

Such a decision would call into question many types of laws Congress has adopted, Jost said, including civil rights, environmental reform, education reform and transportation and public safety laws.

The court will review the 11th Circuit Court of Appeals decision in *Florida et al. v. United States Department of Health and Human Services*, which was brought by 26 states.

During the three-day hearing, the justices will examine four questions about the law, two of which are substantive and two of which are minor.

The court will look at whether the individual mandate, the part of the law that requires nearly everyone to have health insurance or to pay a penalty if they do not, is constitutional. That is a major issue that has been the crux of most legal arguments against the new law. Those opposed to the law argue that Congress does not have the power to compel people to purchase a product such as insurance.

The second substantive issue is the question of whether an expansion of Medicaid to cover more people is constitutional. Those opposed to the law say that the expansion is unprecedented in scope and threatens to withhold federal funding under Medicaid, which they say has never happened before.

Most people did not expect that the court would consider that issue, according to Jost, because the lower courts rejected the claim, and “no federal court has ever found a condition in a federal funding law to be coercive.”

“If they find the Medicaid expansion to be unconstitutional, the court will be creating new law,” he said.

APHA Executive Director Georges Benjamin, MD, FACP, FACEP (E), called it “wrongheaded” to oppose the Medicaid expansion. All the federal government is doing in expanding Medicaid to include those who make up to 133 percent of the federal poverty limit is to add another eligibility group, something it has done numerous times before, he said.

Families USA Executive Director Ron Pollack expressed similar concerns in a statement released shortly after the court announced its intention to review the case.

“We are surprised and troubled that the court has decided to review the states’ objections to the Affordable Care Act’s expansion of Medicaid to millions of low-income Americans,” he said. “Since Medicaid was enacted in 1965, Congress has expanded the program many times without objection from the court. The federal government pays for the majority of Medicaid’s expenses, and it is reasonable that it establish the ground rules for the program’s operation.”

The minor issues to be considered deal with whether the court has jurisdiction to hear the case now or whether it has to wait until after the law is fully in effect; and whether, if the minimum coverage requirement is unconstitutional, the rest of the law can stand.

The case is unfolding against the backdrop of the upcoming presidential election, in which opposition to the Affordable Care Act has been a cornerstone of the Republican candidates’ campaigns.

Some of those opposed to the health reform law had suggested that Justice Elena Kagan, who was serving as solicitor general representing the federal government when the lawsuit against health reform was filed, should recuse herself from the case because it poses a conflict of interest. Others said Justice Clarence Thomas, whose wife, Virginia, has lobbied against the law, also should not hear the case. But both have indicated their intent to stay on, and Chief Justice John Roberts has said he does not believe either should be removed.

“Part of what’s going on is both sides are preparing to describe any result as politically driven rather than legally driven,” Jost said. “They will point to the fact that certain justices should have recused themselves.”

A decision from the court is expected in June, though it could come earlier than that. Generally, Jost said, the justices will know fairly soon after the oral arguments where they come down on the issues, and then they will hash out how and by whom the decision will be written.

The decision will have “enormous implications,” Benjamin said.

“We want people to be safe and healthy and prosperous, and a decision against the health reform law will undercut those efforts,” he said.

Benjamin said national security and prosperity may hang in the balance. An unhealthy population is a weak population, according to Benjamin. People are less able to work, and unhealthy children are less able to learn.

“It would set us back tremendously,” said Benjamin, who noted APHA is part of two friend-of-the-court briefs in the case.

Once the decision is handed down, it is unlikely that the court would take up the issue again in the near future. Though numerous lawsuits have been filed by those objecting to the health reform law, this case, because it involves 26 states, is the most wide-ranging. It is also the only case in which the lower court held the law to be unconstitutional.

“We couldn’t continue on with the law being unconstitutional in Florida but constitutional in New York and other states,” Jost said. “So this will answer the question.”

For more information on the health reform law, visit [www.healthcare.gov](http://www.healthcare.gov).

*   Copyright The Nation’s Health, American Public Health Association