Health Care Law's Medicaid Proviso Divides High Court

March 29--WASHINGTON -- A day after sharply questioning the congressional mandate that everyone buy health insurance, the conservative justices of the U.S. Supreme Court on Wednesday turned their sights on other parts of the Obama health care reform law that they may want to shred.

And while Chief Justice John G. Roberts Jr. expressed sympathy for keeping at least some of the bill's elements, the conservative court majority appeared to take aim at three of the bill's other key provisions.

The mandate that insurance companies cover everyone, the reform that bases insurance rates on community health rather than individual health and a vast expansion of the Medicaid program all came under fire on the last of three days of argument on the constitutionality of the Obama health care law.

Liberal justices defended the bill, but conservatives expressed varying degrees of willingness to obliterate major provisions, if not the whole thing, when the court issues its opinions, most likely in late June.

At one extreme was Justice Antonin Scalia, who said the bill could not survive if the justices rule that the "individual mandate" is unconstitutional.

"My approach would say, if you take the heart out of the statute, the statute's gone," Scalia said.

But Roberts -- widely seen as one of the potential swing votes in the health care cases, along with Justice Anthony M. Kennedy -- took a more nuanced view.

"There are many things in here that have nothing to do, frankly, with affordable health care, and there are some that think it's better to let Congress decide whether it wants them in or out," Roberts said.

Wednesday's arguments took on added importance after four of the nine justices sharply criticized the individual mandate a day earlier.

If that mandate falls, the next issue the justices will have to decide is: How much of the rest of the bill will fall with it?

And even the Obama admin-

istration argued that if the individual mandate is unconstitutional, the requirement that insurance companies cover everyone and set rates more broadly ought to be struck down, too.

Congress thought those provisions -- funded by the "minimum coverage" provision forcing people to buy health insurance -- would make health care more widely available and affordable, said Edwin S. Kneedler, deputy solicitor general for the United States.

"If you take out the minimum coverage, that won't work," Kneedler said.

Roberts seemed to agree, saying a decision leaving those expensive provisions standing could end up "bankrupting insurance companies -- and the whole system comes tumbling down."

There seemed to be more contention, though, about leaving other provisions of the vast 2,700-page health law intact.

Even without the individual mandate, the provision forcing insurers to cover people with pre-existing conditions and the part requiring rates to be based on community health, the bill dramatically remakes the nation's health system.

Most notably, every state would have to set up health insurance "exchanges": public marketplaces where people, sometimes with government subsidies, could shop for insurance and easily compare plans.

Arguing on behalf of Florida and 25 other states, attorney Paul D. Clement said: "If the individual mandate is unconstitutional, then the rest of the act cannot stand."

But that argument got every bit as rude a reception from the liberal justices as the conservatives gave Solicitor General Donald B. Verrilli Jr.'s argument Tuesday that the individual mandate is constitutional.

"The exchanges function perfectly well in Utah, where there is no mandate," said Justice Elena Kagan.

Meanwhile, Justice Ruth Bader Ginsberg noted that the bill includes all sorts of routine provisions, such as compensation for miners with black lung disease and reauthorization of the government's health care program for Native Americans.

"There are so many things in this act that are unquestionably OK," she said. "Why make Congress redo these?"

And even Scalia pushed back against Clement's contention that one bad provision could doom the entire bill. He cited another controversial element that's not at issue in the case: the "Cornhusker kickback" that provided funds to Nebraska, presumably in return for the vote of Sen. Ben Nelson, D-Neb.

"You are telling us that the whole statute would fall because the Cornhusker kickback is bad?" Scalia said. "That can't be right."

Still, Scalia seemed to be taking both sides of the argument, cautioning that it would be "totally unrealistic" for the justices to go through the bill line by line and decide what should stay.

"Mr. Kneedler, what happened to the Eighth Amendment?" he said, referring to the constitutional prohibition of cruel and unusual punishment. "You really want us to go through these 2,700 pages?"

Still, conservative justices took special exception to the Medicaid expansion, which would give states funding to extend that health program to people whose income puts them at 133 percent of the poverty rate.

Florida and its legal allies argue that the Medicaid expansion unconstitutionally coerces them to join a federal program that they may not want to join.

Even though the high court has never before ruled that a federal-state program is unconstitutionally coercive, the conservatives appeared to believe the Medicaid expansion may be a step too far.

That's because if the states don't take part in the Medicaid expansion, they could lose all their federal Medicaid funding -- including the huge sum of money they've gotten for years to care for the poor.

"It's not coercion," maintained Verrilli, arguing for the Obama administration.

"To say I'm going to take away all your funds, no matter how minor the infringement?" a skeptical Roberts asked.

Justice Samuel A. Alito Jr. seemed just as astonished, reflecting on the potential loss of all Medicaid funding and saying: "When that's the case, how can that not be coercion?"

Earlier, though, the liberal justices took an equally strong opposing point of view.

Kagan noted that the federal government would fund the Medicaid expansion for a number of years before cutting its share of funding to 90 percent.

"The federal government is here saying, we are giving you a boatload of money," she told Clement. "It doesn't sound coercive to me, I have to tell you."

Meanwhile, Justice Stephen G. Breyer hinted at the stakes in the case, noting that Congress has expanded the Medicaid program several time since its founding in the mid-1960s.

"Then would you have to say, well, indeed, Medicaid has been unconstitutional since 1964?" Breyer told Clement.

With debate raging on the Medicaid issue, Roberts extended the argument from its scheduled 60 minutes to 90.

The justices will now try to come together on the issues in the case.

And while the court's decisions are likely months away, Scalia spoke as if the health care debate soon would be moving to the U.S. Capitol.

"One way or another," he said, "Congress is going to have to reconsider this."

jzremski@buffnews.com

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