Justices signal deep trouble for health care law

By Mark Sherman

Associated Press

Published: Tuesday, March 27 2012 11:24 p.m. MDT

Solicitor General Donald B. Verrilli, Jr., speaks in front of the Supreme Court in Washington, Tuesday, March 27, 2012, as the court continued hearings on the health care law signed by President Barack Obama. Justices, seated from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg Samuel Alito and Elana Kagan.

Dana Verkouteren, Associated Press

Related: Snapshots from Tuesday's Supreme Court health care discussion

WASHINGTON — The fate of President Barack Obama's health care overhaul was cast into deeper jeopardy Tuesday as the Supreme Court's justices sharply and repeatedly questioned its core requirement that virtually every American carry insurance. The court will now take up whether any remnant of the historic law can survive if that linchpin fails.

The justices' questions in Tuesday's hearing carried deeply serious implications but were sometimes flavored with fanciful suggestions. If the government can force people to buy health insurance, justices wanted to know, can it require people to buy burial insurance? Cellphones? Broccoli?

The law, pushed to passage by Obama and congressional Democrats two years ago, would affect nearly all Americans and extend insurance coverage to 30 million people who now lack it. Republicans are strongly opposed, including the presidential contenders now campaigning for the chance to challenge Obama in November.

Audio for Tuesday's court argument can be found at: http://apne.ws/Hft6z3 .

The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Anthony Kennedy.

But Kennedy, who is often the swing vote on cases that divide the justices along ideological lines, also said he recognized the magnitude of the nation's health care problems and seemed to suggest they would require a comprehensive solution.

He and Chief Justice John Roberts emerged as the apparent pivotal votes in the court's decision. The ruling is due in June in the midst of a presidential election campaign that has focused in part on the new law.

Though many of the justices asked tough questions and made strong statements, past cases have shown that those don't necessarily translate into votes when it comes time for a decision.

Wednesday's final arguments — the third day in the unusually long series of hearings — will focus on whether the rest of the law can remain even if the insurance mandate is struck down and, separately, on the constitutionality of another provision expanding the federal-state Medicaid program.

The insurance requirement is intended to complement two unchallenged provisions of the law that require insurers to cover people regardless of existing medical conditions and limit how much they can charge in premiums based on a person's age or health.

The law envisions that insurers will be able to accommodate older and sicker people without facing financial ruin because the insurance requirement will provide insurance companies with more premiums from healthy people to cover the increased costs of care.

The biggest issue, to which the justices returned repeatedly during two hours of arguments in a packed courtroom, was whether the government can force people to buy insurance.

"Purchase insurance in this case, something else in the next case," Roberts said.

"If the government can do this, what else can it not do?" Justice Antonin Scalia asked. He and Justice Samuel Alito appeared likely to join with Justice Clarence Thomas, the only justice to ask no questions, to vote to strike down the key provision of the overhaul. The four Democratic appointees seemed ready to vote to uphold it.

Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and U.S. citizens.

"Do you not have a heavy burden of justification to show authorization under the Constitution" for the individual mandate? asked Kennedy.

At another point, however, he also acknowledged the complexity of resolving the issue of paying for America's health care needs.

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