Supreme Court: Can Health Act Survive Without Individual Mandate?

PHOTO: Protestors pray in front the Court in Washington, March 28, 2012, as the court concludes three days of hearing arguments on the constitutionality of President Barack Obamas health care overhaul.
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After three days and more than six hours of arguments before the Supreme Court, Solicitor General Donald B. Verrilli gave justices a closing statement of sorts, saying that the Affordable Care Act "unshackled" those who previously could not afford health care and helped to "secure the blessings of liberty" for millions of Americans.

Paul D. Clement, the attorney for 26 states challenging the law, then dismissed Verrilli's argument, saying it was a "funny concept of liberty that forces" someone to buy a product they don't want.

After Chief Justice John Roberts thanked the attorneys, the lawyers' oral arguments were over and the case was submitted for the justices' decision, expected in coming months.

On Tuesday, the court heard arguments on whether the individual mandate, the key provision of the health care law that requires most individuals to buy health insurance, is constitutional.

This morning, the court moved on to arguments over whether the rest of the Affordable Care Act would fall if the mandate were struck down.

Deputy Attorney General Edwin S. Kneedler, arguing on behalf of the government, began arguments by saying the mandate is constitutional, but if it were to fall only two other provisions of the law should follow suit and fall, as well. Those two popular provisions, in part, prohibit insurance companies from denying coverage to people with pre-existing conditions.

Kneedler rejected the "sweeping proposition" of the challengers, who contended that the entire health care law should fall.

Justice Antonin Scalia did not seem convinced.

"If you take the heart out of the statute, the statute is gone," he said.

But other justices probed a middle ground: striking down provisions of the law closely related to the individual mandate.

Justice Anthony Kennedy, a critical vote in the case, seemed concerned about the "risk" imposed on insurance companies if the mandate were struck down but other provisions requiring the insurance companies to cover more people were left standing.

Chief Justice John Roberts worried about the litigation to come from parties affected by parts of the law still standing after the individual mandate falls.

"Do you contemplate them bringing litigation?" he asked.

In her questions Justice Ruth Bader Ginsburg summed up the argument. She said the decision was between a "wrecking operation versus a salvage job." She pointed out that there are many parts of the law "that have nothing to do" with the mandate.

Roberts agreed with the notion that the law contains provisions quite separate from the individual mandate. For example, the law includes everything from a provision on black lung disease to a requirement that restaurants disclose nutritional information about menu choices.

Justice Sonia Sotomayor suggested that it was not the job of the court to strike down the whole law.

"Why wouldn't we let Congress do that?" she asked. "What's wrong with leaving it in the hands of people who should be fixing it, not us?"

But Clement, the lawyer for the challengers, said, "If the mandate is unconstitutional, then the rest of the act cannot stand."

In a rare afternoon session, the court took up a different provision of the law, it's expansion of Medicaid.

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