Does the ACA Coerce States to Expand Medicaid?


March 29, 2012, by Robert Lowes  —  At the very end of the last Supreme Court hearing on the Affordable Care Act (ACA), the attorneys for both sides in the case departed from the assigned topic of whether Medicaid expansion tramples states’ rights and focused on a more basic Constitutional issue — liberty.

US Solicitor General Donald Verrilli Jr, representing the Obama administration, said today that expanding Medicaid eligibility will extend health coverage to millions of individuals who have diabetes, heart disease, and other chronic conditions with profound results.



“As a result of the healthcare that they will get,” said Verrilli, “they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

He credited the individual mandate with having the same liberating power.

Paul Clement, the attorney for the 26 state officials who have challenged the ACA, replied that policies spreading the blessings of liberty sound good in theory.

“But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy,” said Clement.

“Direct Threat to Our Federalism”

The official question before the court today was whether the ACA forces states to do something — in particular, to enroll an additional 16 million people in their Medicaid programs through 2019. As with most public-policy disputes these days, the controversy involves money.

Although administered by the states, Medicaid is funded with both state and federal dollars, with Uncle Sam kicking in about two thirds of the total. Clement said today that the federal government is using the states’ dependence on those federal dollars to coerce them into Medicaid expansion, which the states will find burdensome.

The dollar figures at issue are enormous. Through 2016, the federal government will underwrite 100% of caring for Medicaid recipients who enter the program through the new eligibility requirements. The federal contribution will gradually decrease until it reaches 90% in 2020. In all, the states will receive an additional $434 billion in federal Medicaid dollars during that time.

The state officials complain that Medicaid expansion will nevertheless require them to spend at least an additional $20 billion of their own money on Medicaid, which is already a budget buster for them. Plus, they will have less control over what benefits they offer.



Clement told the justices that the states find themselves unable to opt out of Medicaid expansion because the federal government could withdraw every last dollar of its Medicaid funding, leaving the states entirely on the hook to provide healthcare to the poor. That is a form of coercion, he said, that violates the 10th Amendment of the Constitution, which balances state powers against federal powers in a federalist form of government.

“It’s a very strange conception of federalism that says that we can simply give the states an offer that they can’t refuse, and through the spending power [of Congress]…force the states to do whatever we tell them to,” said Clement. “That is a direct threat to our federalism.”

Other States Welcome Medicaid Expansion, Notes Ginsburg



Justice Stephen Breyer challenged Clement on the threat of states losing all of their federal Medicaid funding if they refuse to accept a change in the program. Breyer quoted regulations stating that the secretary of Health and Human Services (HHS) “at his discretion” can withhold whatever amount he or she deems appropriate. In other words, said Breyer, an HHS secretary may decline to cut off all Medicaid funding for an uncooperative state. And, unreasonable defunding is always open to challenge.

Clement replied that the mere possibility of a state losing all of its federal Medicaid dollars is coercive enough.

Donald Verrilli, the attorney for the Obama administration, said that Medicaid always has expanded through the decades under the same terms — state participation in the program is voluntary, but if states accept federal dollars, they must follow federal rules on how it is spent. He denied that coercion enters the relationship.

Justice Ruth Bader Ginsburg noted that while officials from 26 states object to Medicaid expansion, officials from other states welcome it.



“You are saying that because you represent a sizeable number of states, you can destroy this whole program, even though there may be as many states that want it, that don’t feel coerced,” Ginsburg told Clement.

Verrilli said Medicaid’s expansion is a testimony to a successful federal-state collaboration. Sixty percent of Medicaid spending “is based on voluntary decisions by the states to expand beyond what federal law requires, because this is a good program and it works,” said Verrilli. “And the states generally like what it accomplishes.”

Three days of hearings on the constitutionality of the ACA this week have given the high-court justices more fodder for their deliberations. Their ruling in the case is expected by July, just in time to heat up the coming presidential election.




Supreme Court: Severability of Mandate Tricky



By Emily P. Walker, Washington Correspondent, MedPage Today, March 29, 2012  WASHINGTON — The Supreme Court justices seemed to be at odds over whether the entire Affordable Care Act (ACA) would have to be scrapped if the court rules that the law’s individual mandate provision is unconstitutional.

Wednesday’s oral arguments on the healthcare reform law centered on what should happen if the law’s provision that requires everyone to have health insurance starting in 2014 is found to violate the Constitution — a question often referred to as the “severability” of the mandate.

The Obama administration argues that if the mandate were struck down, the bulk of the law should be allowed to stand.

“Isn’t a half of loaf [of bread] better than no loaf?” asked Justice Elena Kagan, questioning whether it would be wise to ditch the sweeping healthcare reform law wholesale — including the law’s noncontroversial provisions — just because one piece may have to be removed.

No, said Paul Clement, the lawyer for the 26 states that are suing the federal government over the law. Sometimes no loaf is indeed better than a half of loaf, he said. In the case of the ACA, the mandate is too integral to the overall survival of the whole law.

“If individual mandate is unconstitutional, then the rest of the law cannot stand,” Clement argued to the justices Wednesday morning. “If you don’t have the individual mandate to force people into the market, premiums will skyrocket.”

Clement suggested if the mandate is struck down, the whole law should be overturned and Congress can then work to rebuild the parts it wants, piece by piece. Keeping bits and pieces of the law intact is politically complicated and it takes too much work to try and meld the remaining pieces into a policy that works, he argued.

The line of questions from left-leaning justices seemed to indicate they disagreed that no part of the law could function absent a requirement that everyone is insured.

“It’s a choice between a wrecking operation and a salvage job,” said Justice Ruth Bader Ginsburg. “Wouldn’t a salvage job be better?”

Justice Stephen Breyer agreed and said his “totally off-the-cuff impression” was that it didn’t seem necessary to scrap provisions in the ACA that related to disease prevention, biosimilars, or giving doctors incentives to practice in underserved areas, for instance.

Deputy Solicitor General Edwin Kneedler, arguing on behalf of the Obama administration, argued that two key provisions of the law – requiring insurance companies to cover all patients, including those with preexisting medical conditions and not charging higher premiums based on a person’s medical history – could not work without the mandate, but that the rest of the law should stand.

Kneedler argued that if the mandate is found to be unconstitutional, the law should remain largely intact, and Congress could decide how it wanted to change the existing law.

Justice Anthony Kennedy said it would be “an extreme exercise of judicial power” if “one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.” He suggested it would be less extreme to strike the whole law.

Justice Antonin Scalia pointed out the political ramifications of sending a law with its “guts” cut out back to Congress. Many provisions in the law were added by congressional leadership in order to gain votes of individual members of Congress. Without the main part of the law — the individual mandate — “who knows which of them were really desired by Congress … and which ones weren’t,” he said.

Because no side took the position that just the mandate should be severed, the Supreme Court appointed an outside lawyer — H. Bartow Farr — to argue that position. Farr said there are enough other incentives in the ACA to get insurance that every other provision in the law could stand if the mandate is struck down.

The court is expected to rule on the case in June.

The court closed out its 3 days’ oral arguments on the healthcare reform law on Wednesday afternoon, when it heard arguments on the ACA’s expansion of Medicaid.

Wednesday’s arguments were notably less feisty than Tuesday’s arguments, which centered on the most contentious issue of the case: the individual mandate. On Monday the court heard arguments on whether a tax law called the Anti-Injunction Act should prevent the Supreme Court from issuing a decision on the case this year.




What Does Broccoli Have to do With Health Reform?



by Tianzan Zhou,, March 29, 2012  —  Up until now, I hadn’t considered to write an article on healthcare reform simply because of the divisiveness and the complexity of the issue. But after listening to the Supreme Court session and the arguments made on both sides, I can’t help but comment on one popular argument that continuously resurfaces. Yes, it’s the infamous “broccoli argument.”


In short, the argument states that if government were given the power to force individuals to purchase health insurance, a precedent will be created that allows for the government to force individuals to purchase other material goods such as broccoli. This is a slippery slope and, as Justice Anthony Kennedy proclaimed during the hearing, “Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.”

But does it really change the relationship between the government and the individual? It is already mandatory in many states to vaccinate one’s child. If the individual does not act, the child will not be allowed to attend public school. During certain periods in American history, it has also been mandatory for an individual to enroll in the military or face prison time.

And will the mandate lead to a slippery slope in which we all will be forced to buy broccoli? No, thanks to another precedent set by McCulloch v. Maryland that cites the Necessary and Proper Clause of the constitution. In short, Congress has the power to make laws that are not expressly provided by the constitution as long these laws are a necessary and proper means of achieving a major, legitimate public end. The major, legitimate public end in this case is universal healthcare and the mandate is a necessary and proper solution to guaranteeing and subsidizing the healthcare coverage of the sick while allowing for private insurance companies to still be profitable. Otherwise, universal healthcare is only viable through a vast expansion of Medicaid and Medicare. This “government takeover of healthcare” is the reason why the mandate, as ironic as it may seem now, actually originated as a conservative idea.

On the other hand, it is difficult to think of any public end that would deem mandatory broccoli purchases as necessary and proper. Simply purchasing broccoli is, for example, neither a necessary nor proper way of guaranteeing a healthy lifestyle or preventing illnesses. This slippery slope is not as slippery as some make it seem.

What is really disturbing about the broccoli argument is the fact that it shows how out of touch some are with the current state of healthcare. One cannot treat health insurance as a routine material good because there are very few things in life that are as crucial, expensive, and unpredictable as one’s need for healthcare. At any time, not being insured has the potential of carrying with it a life-altering consequence. The broccoli argument dangerously simplifies the complexities of healthcare and masks the very real need for reform.

We should stop focusing on political issues such as the constitutionality of the mandate and start focusing on improving the real weaknesses of the bill such as its lack of malpractice reform and the absence of an effective solution to the primary care crisis. That would be the necessary and proper way to go about improving healthcare.

Tianzan Zhou will be an incoming medical student. He blogs at Taz-Mania.


The New York Times, March 28, 2012  —  In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.


Is the Court Being Thoughtful or Partisan?

Are the Supreme Court justices giving due consideration to the health care law, or preparing to engage in “judicial activism” to reduce federal power?


The skepticism in the questions from the conservative justices suggests that they have adopted the language and approach of the insurance mandate’s challengers. But the arguments against the mandate, the core of the health care reform law, willfully reject both the reality of the national health care market and established constitutional principles that have been upheld for generations.

The Obama administration persuasively argues that the mandate is central to solving the crisis in America’s health care system, which leaves 50 million people uninsured and accounts for 17.6 percent of the national economy. The challengers contend that the law is an unlimited — and, therefore, unconstitutional — use of federal authority to force individuals to buy insurance, or pay a penalty.

That view wrongly frames the mechanism created by this law. The insurance mandate is nothing like requiring people to buy broccoli — a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system.

Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers.

In fact, Justice Scalia has, in the recent past, declared Congress’s broad authority under the commerce clause to regulate activities with far less direct economic impact. In a 2005 case upholding a federal law prohibiting the growing of medical marijuana for personal use, he wrote that Congress may regulate even intrastate activities “that do not themselves substantially affect interstate commerce.”

The skepticism of Chief Justice John Roberts Jr. and Justices Scalia and Samuel Alito Jr. was also troubling because it seemed to accept an odd distinction of timing made by the opponents of the law.

Those critics concede that the mandate would be constitutional if it went into effect at the moment an individual actually needed health care. In other words, Congress could require the sick and dying to pay for insurance or for medical services when they show up in the emergency room, but it cannot require precoverage of medical costs through insurance.

The court has no authority under the Constitution to judge the merits or effectiveness of the health care law. That is Congress’s job.

Yet, as Justice Stephen Breyer remarked about the points made by a lawyer for the opponents: “All that sounds like you’re debating the merits of the bill.” To counter the challengers’ claims of alarm over a novel policy, he offered several examples in American history where the court has strongly backed new solutions to major problems, like the creation of a national bank in the early 19th century.

If the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution? The answer is incontrovertibly yes.




Day Three: Supreme Court Hearings on Health Care




March 28, 2012  —  The Lede is following the third and final day of Supreme Court hearings on the health care overhaul law. From this morning’s session, our colleague Adam Liptak reports, that several justices discussed whether part of the health care law could remain intact if the court rules against the individual mandate provision. Starting at 1 p.m., the arguments will address states’ rights and the expansion of Medicaid under the law.

The Supreme Court has posted the transcript and audio from this afternoon’s session, which focused on the administration’s plan to expand Medicaid coverage to people under the health care overhaul law.

3:37 P.M. |Don’t Blame Donald Verrilli Jr., Analyst Says

Writing on the Above The Law blog, Elie Mystal notes that “it was always going to be an uphill battle with this Court” for the Obama administration’s health care overhaul law. He said it was unfair for anyone to blame the tough questions from the justices on Solicitor General Donald Verrilli Jr., who was criticized earlier in the week for not presenting the government’s case as powerfully as some had hoped.

It was always going to be an uphill battle with this Court.

That’s not Don Verrilli’s fault. People need to stop yelling at this man. No, he wasn’t as witty as Paul Clement. Do we really think that whether or not Anthony Kennedy wants us to have health care will turn on Verrilli’s ability to spit out a one-liner? If liberals want to blame somebody, it’s not Don Verrilli; blame the spineless way Congress and the President abandoned single-payer. That’s why we’re here folks. We sent Verrilli into a conservative lion’s den with a liberal piece of meat hanging around his neck, and now we’re criticizing the way he ran around, screaming for his life. That’s not right.

3:02 P.M. |With final court hearing over, a look at what’s next.

The afternoon session is over, ending three days of arguments on the health care overhaul law.

What’s next? Jeffrey Toobin, CNN Legal Analyst, said that the justices would gather this Friday afternoon in the conference room of Chief Justice John G. Roberts Jr. and discuss the case. No clerks would be allowed to join them. One of the justices would be chosen to write the majority opinion. It is unlikely that a decision would be handed down until the end of June.

During the afternoon session, Mr. Toobin said that several justices seemed open to the administration’s plan to expand the Medicaid program under the health care law. But he said the administration’s health care law did not fare as well during the court hearing earlier in the day and during the other sessions earlier in the week.

He described the individual mandate “as good as gone,” leaving the question whether the justices would rule against the entire law. He said it “shows how much the playing field has shifted” away from where the Obama administration wants it to be.

2:29 P.M. |What Lawmakers Heard At Today’s Hearing

The Hill’s Julian Pecquet reports on the reaction of several lawmakers who attended today’s Supreme Court hearing. Not surprisingly, Democrats and Republicans did not agree on what course the Justices might take with the health care overhaul law.

“What I think I heard in there today were strong, strong arguments that the heart of ObamaCare is the individual mandate,” Rep. Steve King (R-Iowa) told a Tea Party rally after the morning arguments. “I think [the Justices] will understand that if you rip out the heart of ObamaCare – it all must fall.”

Democrats said they got the opposite impression.

The administration’s argument, said Rep. Jan Schakowsky (D-Ill.), was that “it’s better to have half a loaf than nothing at all and that the whole legislation should not be thrown out because there are so many parts to it.”

“I think the arguments were very strong and there were many questions that led in that direction,” she said. “And so it seems to me the case made that if the mandate were struck down the rest of the law could move forward.”

Sen. John Kerry (D-Mass.) said Democrats are already weighing their options on how to protect the law’s insurance reforms without a mandate.

“There’s some discussion, quietly, among some people about what-ifs,” he said. “But there is no overall plan in place” because Democrats are confident it will be upheld.

1:55 P.M. | Justices Parse ‘Complex Parliamentary Shenanigans’

At one stage in this morning’s discussion of whether or not the Court must strike down the entire health insurance overhaul law if a majority of the justices rule that the individual mandate provision is unconstitutional, Justice Antonin Scalia suggested that forcing the judges, or even their clerks, to read every page of the law, deciding item by item what parts could stand, might violate the Eighth Amendment prohibition on cruel and unusual punishment.

Addressing Edwin S. Kneedler, a deputy solicitor general representing the Obama administration, Justice Scalia said, “what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” After a burst of laughter in the room, he added: “And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”

After Justice Sonya Sotomayor cut in to suggest, “I thought the answer was you don’t have to because what we have to look at is what Congress said was essential, correct?” Mr. Kneedler said: “That is correct.” He continued: “I just want to finish the thought I had about this being a matter of statutory interpretation. The Court’s task, we submit, is not to look at the legislative process to see whether the bill would been — would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count.”

Moments later, Justice Elena Kagan observed, “that would be a revolution in our severability law, wouldn’t it?” She added: “I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference. Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.”

When that last line earned another peal of laughter in the courtroom, Justice Scalia joked, “I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.”

1:51 P.M. |Justices Ponder Congressional Deal-Making

At several points during this morning’s session, the justices pondered the workings of Congress and whether the realities of legislative horse-trading mean that unrelated parts of laws are still inextricably linked.

Justice Scalia brought up a controversial provision of the health law, called the “cornhusker kickback” by opponents of the legislation, that created a $100 million special Medicaid allocation for Nebraska in order to secure Senator Ben Nelson’s vote for the health care bill.

Justice Scalia asked skeptically whether, in a hypothetical situation, if that portion were to be found unconstitutional for some reason, would that invalidate the whole law?

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence.

That would mean that if we struck down nothing in this legislation but the — what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?


JUSTICE SCALIA: When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad.

That can’t be right.

Later, Justice Kennedy picked up that line of argument, offering a made-up bill that passed only because of a deal to include both a change on air fare and milk regulation. He asked for guidance from Paul D. Clement, representing 26 states challenging the law.

JUSTICE KENNEDY: But I’m still not sure, what is the test — and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?

If you — suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we — and they decide them together.

The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently.

Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don’t want to go into legislative history, that’s intrusive, so we ask whether or not an objective — as an objective rational matter one could function without — I still don’t know what the test is that we are supposed to apply.

And this is the same question as Justice Scalia asked. Could you give me some help on that?

MR. CLEMENT: Sure. Justice Kennedy, the reality is I think this Court’s opinions have at various times applied both strains of the

Justice Breyer, in a later exchange with Edwin Kneedler, the deputy Solicitor General, offered a scenario more similar to the actual health bill, asking: If two things are need to pay for one goal, and one of those things is thrown out, should the government continue with pursuing that goal, which is now only half paid-for?

JUSTICE BREYER: What he’s thinking of is this: I think Justice Scalia is thinking, I suspect, of — imagine a tax which says, this tax, amount Y, goes to purpose X, which will pay for half of purpose X. The other half will come from the exchanges somehow. That second half is unconstitutional. Purpose X can’t possibly be carried
out now with only half the money.

Does the government just sit there collecting half the money forever because nobody can ever challenge it? You see, there — if it were inextricably connected, is it enough to say, well, we won’t consider that because maybe somebody else could bring that case and then there is no one else?

Is that -­-

MR. KNEEDLER: Yes, we think that is the proper way to proceed.

1:41 P.M. |Photo: Vigils Continue Outside Court



Stephen Crowley/The New York TimesProponents, left, and opponents, right, continued their vigil outside the Supreme Court during the final day of a hearing on the health care law.

1:19 P.M. |Background on This Afternoon’s Arguments re: Medicaid

As the afternoon session gets underway with arguments on the expansion of Medicaid, our colleague Robert Pear outlines, the concerns of the states challenging the law and the implications of their argument that could go beyond health care and raise questions about other conditions attached to federal grants.

A major issue in the Supreme Court battle over the new health care law is whether Congress can force states to make a huge expansion of Medicaid, to add millions of low-income people to the rolls.

States say the federal law is unconstitutionally coercive because all their Medicaid money would be at risk if they flout the new requirement.

The states’ argument has implications that go far beyond health care. It raises questions about Congress’s ability to attach conditions to federal grants to the states for other purposes, like education, transportation, law enforcement and protection of the environment.

The implications for the health care overhaul are also enormous. The Congressional Budget Office says that about half of the people expected to gain coverage under the new law – 16 million of the 31 million people – will get it through Medicaid.

The Obama administration denies coercion and says the terms of the deal are exceedingly generous to states.

Jonathan Turley, a legal scholar, suggests on his blog that the Obama administration might regret engaging in what he called “a game of chicken with the courts where a ruling against the individual mandate would torch the entire historic act.” He adds:

This matter is made more difficult by the confused and conflicted statements of both the Administration and the Justice Department. Initially, the Justice Department insisted that the individual mandate was essential to the Act, which would be fatally harmed if it were ruled unconstitutional. Then, as with other issues, the Justice Department changed its position on severability.

12:26 P.M. |Adam Liptak: Without Individual Mandate, What’s Next?

Our colleague, Adam Liptak, reporting from the morning’s session, says the justices focused on whether the whole law would have to go or could part of it be left intact without the individual mandate provision.

On the third day of Supreme Court arguments over the constitutionality of President Obama’s health care overhaul law, the justices on Wednesday shifted their attention to a question with enormous practical implications: If they strike down a key provision of the sprawling law, what other provisions would have to fall along with it?

Justice Antonin Scalia said the whole law would have to go.

“My approach would be to say that if you take the heart out of this statute,” he said, “the statute’s gone.”

Other justices considered a variety of possible approaches. Justice Ruth Bader Ginsburg called the court’s task, should the key provision fall, a choice between “a wrecking operation” and “a salvage job.”

The issue before the justices on Wednesday took on practical urgency after some of the questioning on Tuesday suggested that the law’s core provision, often called the individual mandate, may be in peril. It requires most Americans to obtain insurance or pay a penalty.

12:17 P.M. |Justices Discuss Leaving Part of the Law Intact

Bloomberg’s Greg Stohr and Laurie Asseo report that Justices Sotomayor asked questions that suggested she and other justices were looking to keep some of the law intact.

Several U.S. Supreme Court justices suggested they may leave much of President Barack Obama’s health-care law intact even if they strike down its core requirement that Americans buy insurance.

“The bottom line is, why don’t we let Congress fix it” instead of throwing out the entire law, said Justice Sonia Sotomayor during the third and final day of arguments on the health-care law.

Chief Justice John Roberts and Justice Ruth Bader Ginsburg, in arguments still under way this morning, said the law includes items, such as reauthorizing black-lung benefits and an Indian health-care measure, that aren’t related to the individual health insurance mandate.

“Why make Congress redo those?” Ginsburg said. It would be better to let Congress decide “whether it wants them in or out,” she said.

12:12 P.M. |CNN Legal Analyst: #HCR Law Not Faring Well

“I think the individual mandate is gone, based on the questioning,” the legal analyst Jeffrey Toobin told CNN after the morning argument. “It sure looks like there are at least five votes to get rid of this law.”

12:02 P.M. |Morning Arguments Are Over

From Tom Goldstein of The SCOTUSblog.

The Court is really struggling with severability. Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act. Most likely would be guarantee issue, community rating and some other pieces essential to keeping insurance prices low. Tea leaves suggested that Justice Kennedy would vote to invalidate the mandate but nothing super-clear. Farr was excellent.

11:57 A.M. |Question: Impact on Insurance industry Without Mandate

Justice Allito asks what will happen to insurance industry if insurance mandate goes away..

11:38 A.M. |More from Justice Kennedy, key swing vote
11:33 A.M. |Justice Kennedy Worries About Law Without Mandate
11:26 A.M. |Early report: Justices Skeptical Whole Act Should Fall

In one of the first reports from the courtroom, the SCOTUS blog says:

“The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. … The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.”

11:20 A.M. |Could Congress Have Prevented “Severability” Debate?

The court is set to consider first what would happen to the rest of the health care law if the individual mandate were deemed unconstitutional. Could that portion be separated, or would the whole law have to be thrown out?

SCOTUSblog observes, in a thorough primer on the day’s hearings, that the issue of “severability” was considered by Congress when drafting the health care law and that at least one version of the text included a clause that could have kept this issue out of the courts:

Congress, of course, could have spared the federal courts, including the Supreme Court, the task of deciding the severability issue. It could have written into the law a single clause, declaring that, if any part of the ACA is stricken, the rest is “severable” and that is what we want. At one point, when the new health care bill was under study in the House, it actually included just such a clause. But that did not survive to final passage. In effect, Congress passed the buck on that to the courts.

Indeed, as Kevin Sack and Robert Pear wrote in The Times in 2010, a House version of the bill included severability language but the clause did not make it into the Senate version, which became the law. “A Democratic aide who helped write the bill characterized the omission as an oversight,” they wrote.

Abbe R. Gluck and Michael J. Graetz, two Columbia University professors, argued in a Times Op-Ed last week that the court has a long tradition of recognizing severability:

The Supreme Court has long affirmed a “presumption in favor of severability,” meaning that when it rules that a statutory provision is unconstitutional, the decision should affect as little of the law as possible. As Chief Justice John G. Roberts Jr. said, while speaking for the court in 2010, making more extensive changes would constitute “editorial freedom” that “belongs to the legislature, not the judiciary.”

It is Congress, not the court, that has the constitutional power and responsibility to make difficult legislative policy decisions like
these. By arguing against severability, the Obama administration – and the law’s opponents, who are making an even more radical claim – is urging the Supreme Court to abandon its tradition of judicial restraint, to ignore longstanding precedents and to undermine the separation of powers.

11:05 A.M. |What the Lawyers Will Argue This Morning

For the first 30 minutes of this morning’s hearing, the plaintiff’s lawyer, Paul D. Clement of the Washington law firm of Bancroft PLLC, argues that if the court rules against the individual mandate provision than the entire law must be struck down. He is followed by Deputy United States Solicitor General Edwin S. Kneedler, who will take the position, on behalf of the Obama administration, that the two closely related parts of the law must fall if the mandate goes down, reports Lyle Denniston for the SCOTUSblog. Finally, a court-appointed amicus, H. Bartow Farr III of the Washington law firm of Farr & Taranto, will urge the court to rule that no other part of the act need fall if it nullifies the mandate.




Justices Ask if Health Law Is Viable Without Mandate



The Roberts Court
Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg



The New York Times, by Adam Liptak, March 28, 2012  —  WASHINGTON — On the third and final day of Supreme Court arguments over President Obama’s health care overhaul law, several justices on Wednesday indicated a reluctance to pick and choose among the law’s other provisions should the requirement that most Americans have health insurance be struck down.

The questions from the justices indicated that at least some of them were considering either striking down just the requirement, often called the individual mandate, or the entire law.

Paul D. Clement, representing 26 states challenging the law, urged the court to overturn the entire law. Edwin S. Kneedler, a deputy solicitor general, took a middle ground, suggesting that the court remove the mandate and only a couple of other provisions.

A third option, supported by neither side, would be to remove only the mandate, potentially leaving Congress to grapple with the remainder of the law. The court appointed a Washington lawyer in private practice, H. Bartow Farr III, to present this argument.

The issue before the justices on Wednesday morning took on practical urgency after some of the questioning on Tuesday suggested that the law’s core provision may be in peril. The mandate requires most Americans to obtain insurance or pay a penalty.

The court separated the day’s arguments into two sessions. After the morning session, which focused on the effect of overturning the mandate, the afternoon’s hearing dealt with the law’s expansion of Medicaid, part of its attempt to reduce the number of Americans without health insurance.

In the second argument, the court’s more conservative justices expressed concern that the law’s Medicaid expansion was unduly coercive to states. The law would give states additional money to expand Medicaid – which covers largely lower-income households – and also add new rules about that coverage.

Justice Anthony M. Kennedy, often the swing vote on the court, wondered whether Medicaid created accountability problems because the federal government set the rules but the states operated it.

The court’s more liberal justices expressed surprise that the expanded program, financed largely with federal money, was at all questionable on constitutional grounds.

During the morning session, the conservative and liberal justices also took different tacks on the implications of overturning the mandate.

“My approach would be to say that if you take the heart out of this statute,” Justice Antonin Scalia said, “the statute’s gone.”

Justice Scalia, who suggested that the whole law would have to go, appeared to go further than some of the other justices, but many of them expressed skepticism that the rest of the law could remain intact if the court ruled the mandate to be unconstitutional.

Justice Ruth Bader Ginsburg called the court’s task, should the key provision fall, a choice between “a wrecking operation” and “a salvage job.”

Mr. Kneedler, representing Mr. Obama’s position, argued that should the court overturn the mandate, two other provisions – one forbidding insurers from turning away applicants and the other barring them from taking account of pre-existing conditions – would also have to fall.

Without the mandate, administration officials say, it would be unreasonable to expect health insurers to cover the sickest Americans if the healthiest ones are not required to pay for coverage. If the pool of the insured was composed disproportionately of the sick, insurance costs could soar.

But the White House says an array of other provisions in the law could stand. They include a vast expansion of Medicaid and the establishment of health insurance exchanges, offering subsidized coverage to those with low incomes, both scheduled to start in 2014.

Mr. Clement, representing the opponents, said the mandate was its keystone and that the entire enterprise must collapse without it.

“If the individual mandate is unconstitutional,” he said, “then the rest of the act cannot stand.”

Last year, the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled that the mandate was unconstitutional, but it said the balance of the law survived.

Neither side agreed with the appeals court’s analysis of whether the mandate could be surgically removed, or severed, without doing damage to at least parts of the rest of the law.

On Thursday, Mr. Farr defended the appeal’s court ruling on severability. He said the law minus the mandate would be less desirable and effective but that the task of addressing that should fall to Congress.

One practical question is whether Congress, deeply divided along partisan lines, would be able to pass new health care laws anytime soon.

Justice Kennedy referred to this, asking if the job of reworking health care would fall to “the real Congress or a hypothetical Congress.”

Kevin Sack contributed reporting.




In the Court, Split Seems Partisan


Stephen Crowley/The New York Times


The New York Times, March 28, 2012, by David Leonhardt  —  Many legal scholars, including some conservatives, have been predicting that the Supreme Court will uphold the 2010 health care overhaul. But after Tuesday’s arguments, when several justices asked skeptical questions about the heart of the law, a political lens seemed relevant, too.

When Congress passed the law, 9 out of 10 Democrats voted for it, while not a single Republican, in either the House or the Senate, did so. In the lower courts, judges appointed by Democratic presidents voted mostly — but not entirely — to uphold the law. And judges appointed by Republican presidents voted mostly — but not entirely — to overturn at least part of it.

It is obviously too early to know what the Supreme Court will do, despite the rush of commentary after Tuesday’s much-watched hearing. But skeptical questions from the bench are often an indicator of how justices will ultimately vote — and many court experts expressed surprise at the apparent agreement among the conservatives, including Justice Anthony M. Kennedy, the likeliest swing vote.

Justice Kennedy, along with Justices Samuel A. Alito Jr. and Antonin Scalia and Chief Justice John G. Roberts Jr. all asked questions suggesting that they had a problem with the constitutionality of the mandate requiring most Americans to buy insurance. Justice Clarence Thomas, as usual, did not ask any questions, but he is widely expected to vote to overturn the mandate.

All five of those justices were appointed by Republican presidents, while the four justices expected to vote to uphold the health care law were all appointed by Democrats. This is the first time in at least 50 years that the decisions issued by the justices have frequently split along directly partisan lines, based on the party of the president who appointed each member.

Both sides, of course, will say that their votes are based only on the law, and both sides can indeed find constitutional precedent to support their arguments. Yet if there is a higher legal truth about the law’s constitutionality, the judges who have ruled on the case so far have yet to agree to it.

Outside experts seem to lean toward viewing the law as constitutional, although they are far from unanimous. In a recent poll, Supreme Court lawyers and former clerks said on average that they thought there was only a 35 percent chance of repeal. “I don’t think this case will be nearly as close a case as conventional wisdom now has it,” said one respondent to the poll, jointly conducted by Republican-leaning and Democratic-leaning groups. “I think the court will uphold the statute by a lopsided majority.”

Other scholars believe the case is a closer call.

The court may well conform to the experts’ predictions and uphold the law when its ruling comes out, likely in June. Justice Kennedy does sometimes side with the liberals, while Justice Roberts has made clear his discomfort with partisan splits on the court. Mr. Roberts and Mr. Kennedy have also issued rulings that indicate they may find the mandate to be constitutional.

At this point, however, it should not be much of a surprise if the court splits along political lines, much as it did in the Bush v. Gore ruling in 2000.

For more than two years now, Democrats have generally voted for the health care overhaul, and Republicans have generally voted against it. When the bill was before Congress, Democrats had a majority in the House and the Senate and occupied the White House, too. But now the case is at the Supreme Court, and the majority there is Republican.




Contingency Plans Are Few if Court Strikes Down Insurance Requirement



WASHINGTON — After a day punctuated by seeming skepticism from Supreme Court conservatives about the constitutionality of requiring Americans to buy health insurance, the justices turned their attention on Wednesday to how much of the 2010 health care law might survive if they strike down that mandate.

If the court invalidates the insurance requirement, the White House and a divided Congress would be left to pick up the pieces. Their first steps toward finding alternatives to reduce the number of uninsured in the country — nearly 50 million, or one in six Americans — would depend heavily on how far the Supreme Court goes, and on the balance of power in Washington after the November elections.

Lower courts that have ruled against the insurance mandate have adopted a spectrum of positions. Judge Roger Vinson of Federal District Court in Pensacola, Fla., who first ruled in the case now before the Supreme Court, invalidated the entirety of the Affordable Care Act, writing that the insurance mandate could not be legally separated from the rest of the expansive law. He stayed that judgment until the law could be reviewed by higher courts.

The Court of Appeals for the 11th Circuit in Atlanta upheld Judge Vinson’s invalidation of the insurance mandate. But it significantly scaled back the impact by concluding that only the mandate itself would die.

The Obama administration argued on Wednesday for a middle ground that is driven by economic assumptions as well as legal analysis. If the mandate falls, the Justice Department has said, two politically popular provisions must die naturally with it — those that prohibit insurers from declining coverage or charging higher premiums because of pre-existing medical conditions.

The economic argument is that it would be unreasonable to expect health insurers to cover the sickest Americans if the healthiest ones are not required to pay for coverage and broaden the actuarial pool. “If you are told that you can buy insurance anytime, you would wait until you got sick and buy it en route to the hospital,” said Neal K. Katyal, the former acting solicitor general, who argued the health care case before the 11th Circuit.

But there also is a clear political component to linking the insurance mandate to the insurance regulations. A poll taken this month by The New York Times and CBS News found that while more Americans disapprove than approve of the law’s insurance requirement, the abolition of pre-existing condition exclusions is wildly popular, with 85 percent saying they supported it.

The health care law began requiring that insurers cover children regardless of their health in September 2010, but the ban would not apply to adults until 2014.

In court on Wednesday, the challengers to the law argued that the entire act must fall along with the mandate. The court has appointed an outside lawyer, H. Bartow Farr III, to argue the 11th Circuit’s position, that the mandate could fall alone.

White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

Congressional leaders in both parties also said there had been no significant contingency planning.

“I think the law is going to be found constitutional, and if not we’ll have to deal with it then,” said Representative Henry A. Waxman, a California Democrat.

Representative Paul Ryan, the Wisconsin Republican chairman of the House Budget Committee, said his party would continue to press for repeal of the law and substantial changes to government insurance programs.

So long as the court does not invalidate the entire law, many other components — and the taxes to pay for them — could remain in place even if the mandate and related insurance regulations are struck down. They include a vast expansion of Medicaid eligibility and the establishment of health insurance exchanges, offering subsidized coverage to those with low incomes, both scheduled to start in 2014.

Other provisions that might survive include increased prescription drug benefits for Medicare recipients, requirements that insurers cover preventive services like cancer screening, incentives for doctors to adopt electronic records, and grant programs aimed at disease prevention and restructuring the medical payment system.

Some health care experts have suggested that there might be ways to replace the insurance mandate by using market incentives to encourage the uninsured to gain coverage.

The government could, for instance, give consumers limited enrollment periods to buy insurance so they could not wait until they were ill. Or it could tell them that if they did not buy a policy during a defined period they also would not be eligible for benefits, like subsidized coverage.

But supporters of the health care law contend that such measures would insure only a fraction of the 30 million estimated to gain coverage with the mandate in place.

“There are alternatives to the mandate, but none of them are considered as effective,” said Neera Tanden, a former Obama aide who now heads the Center for American Progress.

Drew Altman, the president of the Kaiser Family Foundation, a health care research group, said that without the mandate the number of uninsured and the premiums paid for coverage would almost certainly rise.

He said that the partisan divide in Washington, where Republicans have vowed to repeal the health care act, makes it difficult to imagine Congress seeking any kind of repair.

“States may be forced to stitch together a variety of imperfect state-specific approaches if the mandate falls,” Dr. Altman said. “It is useful to remember that we have averaged 19 years between national health reform debates, and only passed national health reform legislation once.”

Day 2 at the Supreme Court: Individual Mandate and the ‘Broccoli Possibility’



By Robert Lowes, March 27, 2012 (Washington, DC) — Attorneys for the Obama administration and opponents of the Affordable Care Act (ACA) squared off in the Supreme Court this morning over the law’s most controversial provision: the mandate to obtain health insurance coverage or pay a penalty.

In the second day of oral arguments in the case, US Solicitor General Donald Verrilli Jr, the attorney for the government, told the justices that the ACA merely regulates the timing of how Americans purchase healthcare. The mandate, Verrilli said, is perfectly acceptable under the Constitution’s Commerce clause, which empowers lawmakers to regulate commerce.

Attorneys for officials from 26 states and the National Federation of Independent Business (NFIB), which are challenging the ACA, described the mandate in more dire terms, saying it is unprecedented and unconstitutional for Congress to compel someone to buy something, or do something, and to penalize them for inactivity.



Justice Stephen Breyer today called that scenario of unlimited federal power, as opposed to limited federal powers spelled out in the Constitution, “the broccoli possibility.” That phrase refers to the argument that the individual mandate could open the doors for Congress to require Americans to eat broccoli.

The humor of a broccoli mandate aside, Justice Anthony Kennedy said the case has momentous implications.



“Here the government is saying that the federal government has a duty to tell the individual citizen that it must act,” said Kennedy, “and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.”

“Can You Create Commerce in Order to Regulate It?”

The arguments on each side of the legal battle are familiar ones. What was different today was how the high court justices forced the attorneys to defend their positions from their opponents’ strongest attacks. Within a few minutes of Verrilli’s presentation, Justice Anthony Kennedy asked him point blank, “Can you create commerce in order to regulate it?”



Verrilli replied that the ACA does not create commerce but, rather, regulates an existing healthcare marketplace that at one time or the other encompasses everyone, whether they like it or not.

The healthcare market cries out for regulation, Verrilli said, because the cost of the uncompensated care received by the uninsured (put at $43 billion/year) is shifted to the public in terms of higher insurance premiums. The mandate cures that problem, he said.

The mandate also makes it feasible to require private insurers under the ACA to guarantee everyone coverage and to base premiums on “community rating”; that is, on age, geographic area, family size, and tobacco use, but not on preexisting conditions. Otherwise, Americans could wait until they were ill before they purchased coverage. This “adverse selection” of sick and expensive insurees would force insurers to raise premiums for a shrinking number of customers, which Verrilli said would wreck the private insurance industry. In contrast, the mandate puts healthy and sick people alike in the insurance risk pool.

Verrilli noted that his opponents in the case concede that Congress has the power to regulate the purchase of healthcare at the point of sale. What the ACA does is require advance purchase of something people inevitably need at some unknown point. Such a requirement, he said, does not create a precedent for mandates to buy cars or cell phones.



Several justices pounded on Verrilli’s argument that Congress can regulate the healthcare market because everyone is in it. Justice Samuel Alito Jr asked why the government should not require everyone, including the young and healthy, to obtain burial insurance.

“Most people are going to need healthcare,” said Alito. “Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?”

Verrilli replied that the burial industry is not plagued by billions of dollars in cost shifting.

Activity vs Inactivity

Paul Clement, the attorney for the 26 state officials, and attorney Michael Carvin, representing the NFIB, also came in for sharp questioning from the justices.



Clement, who was a solicitor general in the George W. Bush administration, said that the individuals improperly compelled to purchase healthcare coverage are largely the young and healthy, who will subsidize the cost of caring for sicker Americans. “Those people are essentially the golden geese that pay for the entire lowering of the premium,” said Clement. His ally, Michael Carvin, said this forced subsidy was a “fundamental problem” with the law.

Justice Ruth Bader Ginsburg suggested that societal subsidies in themselves have passed Constitutional muster — witness the Social Security program created during the Roosevelt administration. The government began taxing everyone so that the elderly could get a check in the mail.



“It was a big fuss about that in the beginning because a lot of people said…they’re forcing me to paying for this Social Security that I don’t want,” said Ginsburg. “But that’s constitutional.”

Ginsburg asked Clement whether he was arguing that, given his opposition to the ACA’s reforms of the private insurance market, the only permissible form of subsidizing healthcare was through a taxpayer-funded government program: “a government takeover.”

“No,” said Clement. “There are other options available.”



For his part, Carvin continued to hammer home the point that the ACA oversteps Congress’ Commerce clause authority by compelling inactive individuals to engage in commerce. He dismissed the notion that everyone is automatically an active participant in the healthcare marketplace.

“If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave,” said Carvin.

Justice Alito asked Carvin if distinguishing between “activity” and “inactivity” is just as artificial as distinguishing between “commerce” and “manufacturing,” which the high court once did, but no longer does.

“The words ‘inactivity’ and ‘activity’ are not in the Constitution,” replied Carvin. “The words ‘commerce’ and ‘noncommerce’ are.”

Oral arguments in the landmark case began yesterday, with the court focusing on whether a tax law called the Anti-Injunction Act bars consideration of the ACA until 2015, when the Internal Revenue Service begins assessing a penalty for not complying with the individual mandate. The high court wraps up its oral arguments on the ACA case tomorrow with a morning session on whether striking down the individual mandate means the entire law must be voided, and an afternoon session on the constitutionality of Medicaid expansion under the law. The justices will issue a ruling sometime before July.

“Mandate Hangs in the Balance”

Today’s proceedings suggest to healthcare-law expert Lawrence Gostin that a majority of the high-court justices could vote to strike down the individual mandate.

“I went into the hearing thinking the justices might uphold the mandate 7 to 2,” said Gostin, faculty director of the Center for Law and the Public’s Health at Georgetown University in Washington, DC. “Now I think mandate hangs in the balance.”

The court’s 5 conservative members — Justices Scalia, Alito, Kennedy, John Roberts Jr, and Clarence Thomas, who did not ask any questions today — strike Gostin as a solid front against the mandate. “They really didn’t give any indication other than skepticism,” Gostin told Medscape Medical News. He called their questions to Verrilli “dogged and determined.”

Kennedy, the court’s reputed swing vote, “didn’t indicate he might support the mandate,” said Gostin. Rather, Kennedy baldly stated that the requirement could change the relationship between the federal government and the individual “in a very fundamental way,” Gostin noted.

In contrast, “it’s very clear that the 4 liberal judges (Justices Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan) would support it.”

Gostin now envisions the possibility of a 5 to 4 vote striking down the mandate.




From Medscape Medical News

Supreme Court Oral Arguments on the ACA:

Part 2: Medicaid Offers You Can’t Refuse, and Severability



The second day of oral arguments on March 27, devoted to the individual mandate and the penalty for noncompliance, should prove the most momentous. Attorneys for the Obama administration and the law’s opponents — elected officials from 26 states and the National Federation of Independent Business (NFIB) — will debate for 2 hours whether the Constitution authorizes Congress to require citizens to purchase health insurance without opening the door to mandates to buy cars, eat broccoli, or do anything else, for that matter. In other words, where does the power of the federal government stop?

The oral arguments on day 3, March 28, while not as central to the case, will be the lengthiest — 1.5 hours in the morning and 1 hour after a Supreme Court lunch. The afternoon session continues the discussion of federal power and its limits, but in a different vein. The opposing attorneys will delve into the ACA’s dramatic expansion of the Medicaid program, which the 26 state officials view as a usurpation of states’ rights. In the morning session, the 9 justices will hold court on a more technical but still portentous question: whether striking down the individual mandate dictates striking down the whole law.

The ACA has been contested in more than 2 dozen suits in federal courts. The case before the Supreme Court originated with a challenge filed by the 26 state officials and the NFIB in a district court in Pensacola, Florida. The case was appealed to an Atlanta appellate court and then kicked up to the Supreme Court.

Can States Say No to Billions in Federal Medicaid Dollars?

An estimated 32 million Americans are expected to obtain insurance coverage under the ACA through 2019, and half will do so by enrolling in Medicaid. Beginning in 2014, the law expands Medicaid eligibility beyond currently specified categories of low-income Americans, such as families with dependent children, to include everyone younger than 65 — childless adults among them — with incomes up to 133% of the federal poverty level.

Although administered by the states, Medicaid is funded with both state and federal dollars. In fiscal 2009, total Medicaid spending came to $366 billion, with $243 billion, or 66%, coming from the federal government, and the states supplying the rest.

It is this state dependence on federal funds that gives rise to the Medicaid-expansion controversy before the court. Through 2016, the federal government will pay 100% of the cost of providing medical care for Medicaid recipients who enter the program through the relaxed eligibility requirements of the ACA. After that, the federal contribution gradually decreases until it halts at 90% in 2020, leaving states with a 10% share.

The 26 state officials challenging the law argue that although the states will receive an extra $434 billion in federal Medicaid funds through 2020, they will be forced to spend at least $20 billion of their own money on their Medicaid programs, which are already straining state budgets. The ACA also creates a new minimum-benefits package for Medicaid that eliminates the flexibility that states now have to design benefit packages in keeping with their budgets, according to the state officials.

Yet they have no choice but to participate in the Medicaid expansion, the officials say, because if they do not, the federal government could withdraw all their Medicaid dollars. As a result, states would “assume the full burden of covering its neediest residents’ medical costs.” By using its spending power to coerce states to do its bidding, the state officials say, the federal government violates the Tenth Amendment and its enshrinement of states’ rights, which counterbalance federal rights in a federalist form of government.

The Obama administration counters that the Constitution gives Congress not only the power to spend money but also the power to set conditions for federally funded programs, which has always been the case with Medicaid. Participation in Medicaid is voluntary, the administration notes, and besides, the Medicaid expansion is not as onerous as the states claim it to be. Other ACA reforms, it says, will save states $100 billion through 2019, more than offsetting their increased Medicaid outlays.

So far, the administration’s position has prevailed in the federal courts, even in those that have struck down the individual mandate, such as the district court in Pensacola, Florida. There, US District Judge Roger Vinson declared that Medicaid expansion does not trample states’ rights. The appellate court in Atlanta that reviewed Vinson’s decision reached the same conclusion — no to the mandate, yes to Medicaid expansion.

Foes of Medicaid expansion hope that lightning will strike their way in the Supreme Court. With that hope in mind, the attorney representing the state officials next week — Paul Clement, a former Solicitor General in the George W. Bush administration — is likely to cite a 1987 Supreme Court decision titled South Dakota v. Dole. In that case, the high courtupheld the federal government’s right to withhold highway funds from states that allowed individuals younger than 21 to buy or possess alcohol.

Although the federal government won that case, Chief Justice William Rehnquist wrote in the court’s opinion that in some circumstances, congressional spending inducements might be so hard to refuse “as to pass the point at which ‘pressure turns into compulsion.’ ” The 26 state officials contend that the threatened loss of billions in federal Medicaid dollars clearly qualifies as compulsion a la Dole.



Robert Alt, a senior legal fellow of the conservative Heritage Foundation, agrees with the state officials. In an interview with Medscape Medical News, Alt said that the coercion embodied in ACA Medicaid expansion, with hundreds of billions of dollars at stake, dwarfs that in the Dole case, in which only 5% of South Dakota’s federal highway funds were involved.

“The brief filed by the [state] parties is pretty in-your-face to the court on this point,” he said. “It essentially says, ‘Look, if not here, where?’

“The states don’t feel as if they have any option but to participate [in Medicaid],” Alt added. “Nobody believes that it is voluntary.”



Robert Schapiro, interim dean of the Emory University School of Law in Atlanta, Georgia, said he expects the high-court justices to press Clement during oral arguments for a clear “limiting principle” on when federal grants cross the line from pressure to compulsion.

“The court will be very concerned about…not being able to draw the line about what is too much,” said Schapiro. The court would view that fuzziness as an invitation to future lawsuits that could undermine other federal programs.

Does One Unconstitutional Apple Spoil the Whole Barrel?

When US District Judge Roger Vinson struck down the individual mandate in January 2011, he also struck down the entire ACA.

“I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit,” Vinson wrote in his opinion.

Although the appellate court in Atlanta upheld Vinson’s ruling on the individual mandate, it reversed his decision to throw out the entire law. The mandate, the appellate judges wrote in their opinion, was severable from the other provisions. A district judge in Richmond, Virginia, also declared the mandate to be unconstitutional and detachable.

With lower courts splitting on severability, the Supreme Court will oversee 90 minutes of oral arguments on this issue on the morning of March 28.

Attorneys for the 26 state officials and the NFIB next week will again reiterate that the ACA hinges on the requirement for everyone to obtain health coverage, either through Medicaid or through a private insurer. And they will quote the Obama administration to make their point. The administration has repeatedly argued that without the mandate, it would not be feasible to require private insurers under the law to guarantee coverage to everyone and charge them the same premium — the essence of “community rating” — instead of basing premiums on pre-existing medical conditions. If Americans are not required to obtain coverage, they could wait until they were sick before they purchased it. This “adverse selection” of sick and expensive insurees would force insurers to uniformly raise premiums for a shrinking number of customers, which would lead to a “death spiral” for private insurance, as healthcare economist Uwe Reinhardt at Princeton University put it in congressional testimony.

The state officials and the NFIB both note that an early healthcare reform bill in Congress included a severability clause that would prevent one unconstitutional apple from spoiling the entire barrel but that the final bill lacked this clause. The Supreme Court brief filed by the state officials on this point stressed that even if one ignores the issue of the severability clause, Congress clearly signalled its intent to make the mandate the central, indispensable provision of the law.

The administration counters that the state officials and the NFIB are not affected by the vast majority of the ACA’s provisions — some already in effect — and therefore have no good reason to seek their demise on the grounds that the mandate is unconstitutional and inseverable. Furthermore, the ACA’s opponents have not proven that Congress “would not have wanted the bulk of the Act’s provisions to operate independently” of the mandate, according to the administration. It concedes, however, that if the high court were to strike down the mandate, the Supreme Court should invalidate the intertwined provisions of guaranteed coverage and community rating, but leave the rest of the law alone.

The Supreme Court appointed attorney H. Bartow Farr III as a friend of the court, or amicus curiae, to provide a nonpartisan take on severability. In the written brief that he will reiterate next week, Farr makes a case for preserving the remainder of the law if the mandate is struck down. The high court, he writes, rarely invalidates perfectly constitutional provisions of a law simply because of a single offending section. For one thing, the court wants to stay within its judicial role and respect the will of Congress as much as possible.

Farr discounts the absence of a severability clause in the ACA, noting that both the House and Senate manuals for drafting legislation describe such clauses as nonessential because the courts apply “a presumption in favor of severability anyway.”

Farr goes a step further than the administration in his pro-severability stance. He writes that guaranteed coverage and community rating should remain intact if the mandate is invalidated. Congress would want these insurance reforms to stand independently, he states. And if they take effect without the mandate, they would not necessarily trigger the insurance-industry death spiral predicted by many. Farr cites a Congressional Budget Office study stating that generous premium subsidies created by the ACA would encourage “the enrollment of a broad range of people,” and thus work against adverse selection.



Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, a progressive think-tank and law firm in Washington, DC, believes the Obama administration enjoys the upper hand on the severability issue in the Supreme Court case.

“There’s a strong presumption in the court that congressional arguments are constitutional,” said Wydra, echoing Farr. “It’s not the court’s business to rewrite legislation.

“If the court struck down the mandate, it would limit the impact on the rest of the law,” Wydra predicted.

A Case About Congressional Power, Not Healthcare

During the oral arguments on severability, Wydra expects the Supreme Court justices to question the parties carefully about how the ACA is structured and how it is intended to work. However, the judges will have more than healthcare policy on their minds.

The questions “are about understanding the law and identifying what is severable rather than judging its wisdom,” said Wydra.



“It’s important to remember that this case is not about whether the ACA is a good law or a bad law,” she said, “but whether it is within the constitutional authority of Congress.”

“This is not a debate on how to reform healthcare,” added Elliott Pollack, an attorney in Hartford, Connecticut, and the health law editor for a journal on Supreme Court cases published by the American Bar Association. “It’s not the role of the court to make those decisions.”

Instead, the Supreme Court will make a decision within its proscribed realm — the US Constitution.


The New York Times, March 26, 2012, by Lincoln Caplan and Philip M. Boffey  —  The Supreme Court’s decision on the Affordable Care Act will have immense political importance. The law, which rivals Medicare in scope, is the biggest achievement of the Obama administration. Striking it down has become a Republican crusade.

The justices, like the rest of the country, are clearly aware of the politics of the moment. But a decision on the merits will endure long after this election season — it could alter the allocation of power within American government and Congress’s authority to solve national problems.

The act requires almost all individuals to obtain health insurance, either through private plans or public programs, or pay a financial penalty. It places new requirements on health insurance, like full coverage for preventive care. And it will subsidize insurance for low-income and moderate-income people, while expanding Medicaid programs in the states to cover many millions more.

Here is a look at the issues to be argued over three days this week in this extraordinary case.

MONDAY The first issue has not received much attention but is a crucial hurdle: the federal Anti-Injunction Act. This arcane law bars suits to block a tax until the tax is actually levied and paid. If the court decides that this law applies in this case, it could delay ruling on the legality of the individual mandate for three years.

Since no party in the Supreme Court litigation has claimed that the act applies, the court asked an independent lawyer to argue the position that the court cannot rule on the mandate’s constitutionality until the financial penalties for failing to obtain insurance go into effect in 2015.

Federal appeals courts are split on this question. The Fourth Circuit ruled that the penalty is a tax, so the suit it considered is barred for now. The appeals courts for the District of Columbia and the Sixth Circuit came out the opposite way.

Both the Obama administration and the challengers oppose the court-appointed advocate’s view. But if the court is persuaded by his argument, it could avoid making a hard decision in a heated election season.

TUESDAY Does the Constitution give Congress power under the commerce clause to require Americans to obtain health coverage? Every relevant constitutional precedent over the last 75 years says yes. The mandate is a core part of Congress’s effort to reform the national markets in health care and health insurance.

The critics insist that the mandate is unconstitutional because it regulates inaction. But the distinction they draw between inaction and action makes little sense. Refusing to pay a tax, for instance, is “inaction” that is clearly subject to government regulation. Choosing not to have health insurance is just as clearly a financial action — one that could shift future medical expenses onto others in the health system.

The court needs only to decide whether there was a “rational basis” for Congress to conclude that the health care of 50 million uninsured people affects interstate commerce. Not since the New Deal has the court struck down a law with an economic purpose as exceeding Congress’s power.

There may well be a split among the conservative justices about the mandate, with two or more joining the moderate liberals to uphold it. In 2005, Justice Antonin Scalia and Justice Anthony Kennedy joined the 6-to-3 majority in upholding Congress’s power to prohibit marijuana use for medical purposes. Justice Scalia wrote then, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

He might agree with what Judge Jeffrey Sutton, a George W. Bush appointee on the Sixth Circuit Court of Appeals, wrote in upholding the mandate: “Not every intrusive law is an unconstitutionally intrusive law.”

WEDNESDAY The morning session will be devoted to “severability,” the question of what happens to other provisions of the law if the individual mandate is struck down. The law’s opponents say the entire law must fall because they believe Congress would not have passed the other provisions, which raise money and reduce costs, without it. The Obama administration argues that the only provisions that would have to fall are those prohibiting insurers from denying coverage to people with pre-existing conditions or charging them higher premiums. (Those parts, it says, depend on the mandate adding healthier, cheaper people to insurance pools.) There is a third, more sensible position: the rest of the act stands because courts generally avoid striking down entire laws when one provision is flawed and Congress quite likely would have enacted the reform’s other elements without the mandate.

The second issue involves Congress’s power to require states to expand Medicaid. Although most of the expansion cost would be paid by the federal government, states would pick up a small part of it, starting in 2017. The Republican-controlled states argue that the law unconstitutionally “coerces” them to cover more people and that the penalty for failing to — allegedly losing all their Medicaid funding — leaves no choice but to capitulate. This issue is really just a policy struggle between the parties. Thirteen Democratic-leaning states filed a brief backing Medicaid expansion, skewering most of the Republican arguments. The 11th Circuit appeals court in Atlanta has ruled that the law is not coercive and that federal officials can impose lesser penalties than stopping all Medicaid funding. There is no reason for the justices to disagree. LINCOLN CAPLAN and PHILIP M. BOFFEY

The writers are two of the eighteen members of the New York Times Editorial Board



Philip M. Boffey | Science

Philip M. Boffey is an editorial writer at The New York Times. He formerly served as a reporter, science and health editor and deputy editorial page editor. Mr. Boffey was a member of two reporting teams that won Pulitzer Prizes: the first in 1986 for a series on the “Star Wars” missile defense system, the second in 1987 for coverage of the Challenger space shuttle disaster. He has been president of the National Association of Science Writers and is a director of the Council for the Advancement of Science Writing. Mr. Boffey is the author of “The Brain Bank of America,” an investigation of the National Academy of Sciences, published in 1975.

Born in East Orange, N.J., Mr. Boffey received an A.B. degree, magna cum laude, in history, from Harvard College in 1958.


Lincoln Caplan | U.S. Supreme Court
Lincoln Caplan writes about the U.S. Supreme Court and other subjects related to legal affairs. From 1998 until 2006, he was on the faculty of Yale Law School as the Knight Senior Journalist, where he was the founding editor and president of Legal Affairs magazine. He also taught nonfiction writing at the law school and in the English Department of Yale University.

A 1972 graduate of Harvard College, he attended Cambridge University in England as a Harvard Scholar in 1972-73 and received his J.D. from Harvard Law School in 1976. He clerked for the chief justice of the Connecticut Supreme Court, worked as a management consultant for The Boston Consulting Group, Inc., and was a White House Fellow. From July 2006 until July 2010, he was managing partner of SeaChange Capital Partners, a nonprofit finance firm he helped launch that raises philanthropic capital for nonprofit organizations involved in education reform and youth development for low-income young Americans.


He is the author of five books about law, including The Insanity Defense and the “Trial of John W. Hinckley, Jr.,” which (as excerpted in The New Yorker) won a Silver Gavel Award from the American Bar Association; “The Tenth Justice: The Solicitor General and the Rule of Law”; and “Skadden: Power, Money, and the Rise of a Legal Empire,” written with support of a Guggenheim Fellowship. He has been a staff writer for The New Republic and The New Yorker. He has also been an editor at U.S. News & World Report. He is a member of the editorial board of The American Scholar.

Credit: Getty Images

Posted on March 26, 2012

WASHINGTON, D.C. — Supporters and opponents of President Barack Obama’s health care overhaul are making themselves heard outside the Supreme Court this morning, as justices begin three days of hearings to determine the fate of the law.

Dozens of supporters of the law chanted and carried signs that read, “Protect my healthcare.” A half-dozen opponents shouted, “We love the Constitution.”

People who’ve been hoping for a glimpse of the historic Supreme Court arguments have been waiting in line all weekend for the relatively few seats open to the public.

The justices allotted six hours of argument time for the case — the most for any case since the mid-1960s.

Today’s arguments will focus on whether the challenge to the law is premature, since the requirement for people to buy health insurance doesn’t kick in until 2014.


US Supreme Court hears health care law arguments

Credit: Getty Images

WASHINGTON, DC – MARCH 26: A guard stands outside the U.S. Supreme Court Building on March 26, 2012 in Washington, DC. Today the high court, which has set aside six hours over three days, will hear arguments over the constitutionality President Barack Obama’s Patient Protection and Affordable Care Act. (Photo by Mark Wilson/Getty Images)



Waiting (and Sleeping) in Line, for View of Health Care History



The New York Times, March 26, 2012, by Emmarie Huetteman, WASHINGTON — Time becomes an abstract concept after you have spent 47 hours sitting on the sidewalk outside the Supreme Court.



Searching her memory, Kathie McClure, a 57-year-old trial lawyer from Atlanta, struggled to recall when the fight broke out over the fourth and fifth spots in line to attend this week’s arguments in a constitutional challenge to the health care law. It was sometime on Saturday, she remembered. But was it before or after the “Road to Repeal” Tea Party rally, which started at noon? And when was it that she ducked into a Starbucks to warm up after being out in the rain?

Heading into the first of three days of Supreme Court arguments on Monday, the pavement occupied by the approximately 15 people in line Sunday morning was among the most coveted real estate in Washington. Tickets are scarce even for those connected to the case. And for everyone else, there’s the line.

It started with two people who were in line by 9:30 a.m. on Friday, waiting to score one of at least 60 seats made available to the general public for each day of arguments, said Kathy Arberg, a Supreme Court spokeswoman.

Monica Haymond, a 23-year-old legal assistant who passed the time by watching episodes of “Dr. Who” on her laptop, lined up after work Friday — 63 hours before arguments were to begin. “We were hoping to be the first people here, but apparently it was more competitive than we had ever imagined,” she said.

The first two in line declined to be interviewed, and others identified them as paid placeholders.

In Washington, anyone who wants to attend a judicial or Congressional hearing and can afford to spend $36 to $50 an hour can hire professional “line standers” through companies like Washington Express to do the waiting for them., which had people waiting outside the court over the weekend, lets customers choose how early they want their surrogate to arrive, including an option labeled “please put us at the front of the line.”

Witnesses say the fight Saturday was over a couple of placeholders’ spots. According to Ms. McClure, who was just behind the placeholders, a supervisor for one of the companies discovered that two workers had abandoned the line, leaving his prime fourth and fifth spots unattended. He began arguing with the others in line and with the court police, a heated exchange that included “some mild threats,” Ms. Haymond wrote on her blog.

Ms. McClure said the police threatened to remove the supervisor’s employees from the line. He managed to negotiate the return of one of his lost seats, moving Ms. McClure up to No. 5 and, according to Ms. Haymond, prompting the creation of an unofficial roster.

As Ms. Arberg, the spokeswoman, noted, nobody is assured a seat until Monday morning, at which point those in line can either go in or stick around for Tuesday’s or Wednesday’s arguments. For the most part, the line standers police themselves, generally sticking to a friendly code that allows for bathroom breaks and food runs.

Though only a few people joined the line between Friday night and Sunday morning, the faces changed from hour to hour. Most were paid placeholders and volunteers who worked in shifts. John Winslow, the manager of, said he paid his placeholders $18 an hour, half the company’s fee of $36 an hour.

Rev. Rob Schenck, president of Faith and Action, a Christian group that opposes the law’s requirement that employers cover contraception, said that a team of staff members, others the group was compensating and some volunteers were holding spots in line for him and three others. Among the volunteers were his three adult children.

“No matter what kind of puny compensation they would receive, it’s way above and beyond the call of duty,” he said of the placeholders.

As one might expect during an overcast weekend on a Washington sidewalk, there were ups and downs. The group was upbeat on Friday night when temperatures were in the 50s, but by 2 a.m. Sunday, they were huddled under ponchos and tarps in the pouring rain, struggling to sleep while observing the “no camping” rule that prohibited tents.

Faith and Action, which occupies a row house near the court, opened its doors, offering free food and access to its two showers. And as those in line emphasized, there was a congenial atmosphere that disregarded opinions on the case’s outcome as people shared food and offered to pick up extra sleeping bags for those without.

But Ms. McClure, who has two children with chronic health problems and has traveled the country in a purple bus to drum up support for the law, said they should not have had to wait in line at all, arguing that the court’s proceedings should be televised.

“This is a momentous case,” Ms. McClure said. “Insurance coverage for 30 million people is on the line, and we’re having to sleep on the sidewalk to get a peep at what goes on in there?”


Could This Be the End of Health Care Reform?


Ezekiel Jonathan Emanuel

Born 1957
Nationality United States
Fields Medicine, medical ethics
Institutions University of Pennsylvania
Alma mater Harvard University (M.D., Ph.D.)
University of Oxford (M.Sc.)
Amherst College (B.A.)


The New York Times, by Ezekiel J. Emanuel  —  What if the Supreme Court declares unconstitutional the Affordable Care Act’s requirement that everyone buy health insurance? What if it strikes down all the act’s insurance provisions, including the requirement that insurance companies cover everyone, regardless of pre-existing illnesses? Would this totally put an end to the health care reforms we have passed in the last three years?

Absolutely not.

The essence of the case the Supreme Court will begin hearing on Monday is whether, invoking its powers in the commerce clause of the Constitution, Congress can require individuals to purchase health insurance or pay a penalty. I believe the mandate is constitutional, but no matter how the court rules, many health care reforms that were approved by Congress through the Affordable Care Act and other recent bills — like those to promote electronic health records, encourage coordinated care, reduce medical errors and cut costs — will proceed.

No matter how the court rules, many health care reforms will proceed.

Tens of thousands of Americans die because of hospital-acquired infections every year, and far more are harmed by medical errors. Last year, authorized by the Affordable Care Act, the Obama administration announced a $500 million program called Partnership for Patients aimed at reducing hospital-acquired infections, errors and other preventable complications. The act also requires Medicare to begin posting online each hospital’s rate of certain medical errors and infections, and to cut payments to hospitals with the highest rates.

Consequently, hospitals across the country are working to reduce preventable hospital errors. Once it’s clear that this is a major priority, significant progress can be made. A few years before the health care reform act was passed, the Hospital of the University of Pennsylvania, where I work, started paying attention to reducing preventable errors, and it managed to reduce infections from intravenous lines to 1 or fewer per month from 30 to 40 per month. All it took was removing intravenous lines whenever they weren’t necessary, changing them regularly and using a more vigorous sterilizing technique when inserting them. Many other institutions are making similar progress now. All of this has nothing to do with the constitutionality of the individual mandate and will continue no matter what the Supreme Court rules.

The same goes for the problem of hospital readmissions. Right now, nearly 20 percent of Medicare patients who are discharged from a hospital are readmitted within 30 days. Some are scheduled readmissions; others occur for completely unrelated health problems, like falls and accidents. But many could be prevented by paying more attention to the coordination of care between physicians and hospitals and by better follow-up after patients are discharged. Beginning this year, the health care reform act will penalize hospitals that have high readmission rates for three conditions: pneumonia, heart failure and heart attacks. This list will later be expanded. As a result, all hospitals are now scrambling to figure out how to create “the perfect patient discharge” so patients don’t become hospital “frequent fliers.”

Other progress is being made that will not be affected by a court ruling on the mandate. Thanks to the act, there has been a growth of accountable care organizations — groups of physicians and hospitals that come together to deliver coordinated care at a lower cost and to share in potential savings. Many health policy experts think these organizations are our best hope to improve care and lower costs.

The act also lays the groundwork for a more efficient payment system. Today, payment for a knee replacement, for example, is à la carte: fees for the orthopedic surgeon, the anesthesiologist, the radiologist, the hospital and operating room and the physical therapist are all paid separately. Under the health care reform act, Medicare is instructed to conduct 10 pilot programs with “bundled payments,” in which there is one fixed price for the whole episode of care. Preliminary data suggest that bundled payments can produce significant efficiencies and cost savings, and improved quality through better coordination of care.

And a few reforms that have nothing to do with the Affordable Care Act will continue as well. The American Recovery and Reinvestment Act — the 2009 stimulus — contained provisions to promote the expansion of electronic health records, which allow physicians to more closely track patients, especially the chronically ill, and enable the seamless exchange of data among multiple physicians, hospitals and other providers. In just the few years since, there has been tremendous progress: before, just 16 percent of hospitals had electronic health records; now 35 percent have them. Before, 17 percent of doctors used electronic records in their offices; now 34 percent do.

Of course, one big thing will change if the court rules the individual mandate unconstitutional: Instead of the 32 million Americans predicted to gain coverage under the health insurance reform act, only around 16 million Americans would gain coverage. Even with subsidies for buying insurance, some healthy people would opt out of the state health insurance exchanges authorized by the act. This would drive up premiums by an estimated 15 to 20 percent and push more healthy people out of the market, creating a downward spiral until the only people buying insurance are those who are very sick. While many states may still try to move forward with their exchanges without the mandate, they will eventually collapse.

If the Supreme Court rules that the individual mandate is unconstitutional — in my opinion, an improbable and legally indefensible decision — it will not end health care reform. Hospitals and doctors will continue to work to improve care and control costs. But tens of millions of Americans will continue to be excluded from the health care system, which is hardly an optimal outcome.


One comment:

  • mancuroc
  • Rochester, NY

If the Supreme Court overrules the Affordable Health Care Act, it may ultimately result in a kind of justice that the Act’s opponents didn’t expect – the enactment of the simple Medicare for All health care that we should have had in the first place.




Is the Court Being Thoughtful or Partisan?


Credit: Scott Applewhite/Associated Press  —   Senator Jim DeMint, Republican of South Carolina, and other lawmakers publicly criticized President Obama’s national health care plan last October.



The New York Times, March 25, 2012  —  While a political furor has surrounded the 2010 health care overhaul, many have said the legal issues the Supreme Court will consider this week when it hears arguments about the law have never been widely disputed. Congress’s power to regulate interstate commerce, the legal foundation for the law’s requirement that all people get health insurance, has been settled law for 70 years. And no lower appellate court has ruled against the law’s expansion of Medicaid coverage. Yet the court has scheduled three days of arguments of these and other issues.

Are the justices giving due consideration to a complicated legal dispute, or preparing to engage in “judicial activism” to reduce federal power?



The Money Traps In U.S. Health Care

The New York Times, by Philip M. Boffey, January 22, 2012  —  Why does an appendectomy in Germany cost roughly a quarter what it costs in the United States? Or an M.R.I. scan cost less than a third as much, on average, in Canada?

Americans continue to spend more on health care than patients anywhere else. In 2009, we spent $7,960 per person, twice as much as France, which is known for providing very good health services. And for all that spending, we get very mixed results — some superb, some average, some inferior — compared with other advanced nations. Why this is true isn’t easily answered.

Health reform is supposed to control costs, but there is no simple avenue of attack. Our aging population has played a role in driving up medical costs, but Germany, Italy and Japan have much bigger percentages of elderly people while spending much less per capita on health care.

The spread of health insurance, which shields patients from price sensitivity, has played a role in driving up our spending. But almost all other advanced industrial nations cover virtually everyone, while we leave 50 million uninsured.

Administrative costs are high here — no surprise given the hordes of clerks and accountants needed to deal with insurance paperwork. And technological advances, which are sometimes highly beneficial and sometimes not, often cost a lot more than standard treatments. (Surprisingly, American doctors lag far behind their counterparts abroad in using electronic health records, which can help avoid costly errors and duplications.) Insurance companies’ profits and the high pay of their executives may account for some of the cost differences with other countries, but there is little good data on this.

A recent report from the Organization for Economic Cooperation and Development, a 34-member group that includes the most advanced industrial nations, concluded that spending is high here partly because the prices charged by American doctors and hospitals are higher than they are anywhere else.

The International Federation of Health Plans, in its 2010 comparative price report, documented just how large the price differential can be for a wide range of services. While it’s difficult to get data that is truly comparable from one country to another, the trends show Americans paying a lot more than people in other countries for the same services.

Measuring how effectively we spend health care dollars is hugely complicated. But cross-national surveys offer some clues. We’re good at giving patients what they want — if they ask for it. So Americans can see a specialist or get elective surgery a lot faster than patients in other countries, according to surveys by the Commonwealth Fund. The surveys also show that Americans are more likely than people in other advanced nations to experience medical errors or problems with uncoordinated care, and to forgo care because it’s too expensive.

The O.E.C.D. report rates America at or near the top for survival rates in breast and colorectal cancer but slightly below average in cervical cancer. We rank in the middle of the pack in the percentage of heart attack patients who die in the hospital within 30 days of admission. And we have alarmingly high rates of hospital admissions for asthma and uncontrolled diabetes — an indicator that many patients don’t have good primary care, which can prevent costly hospital stays.

Most other advanced countries hold down prices through government regulations. We set prices in Medicare and Medicaid programs. But in private markets, reform has to rely on other means, such as financial incentives for providers to curb costs by coordinating care and improving efficiency. One demonstration program significantly reduced spending by bundling payments to hospitals and doctors to cover all in-patient services connected with heart bypass surgeries.

The idea at the heart of the reform law is that such strategies, once proved effective, could be carried out on a large scale — and eventually bring total spending under control.



Editorial | State of Play

Will Health Care Reform Survive the Courts?


The New York Times, by Philip M Boffey, August 20, 2011  —  The legal battle over the constitutionality of the health care reform law will determine how far government can go in helping to improve people’s lives. Ultimately, the Supreme Court will have to decide this question. Until then, the pileup of lower federal court rulings — responding to some of the more than two dozen lawsuits filed against the law — is confusing and sharply divided, especially on the requirement that individuals buy or obtain health insurance or pay a penalty.


So far, six federal judges have ruled that this “individual mandate” is constitutional while five have found that it is not. (While most of those judges appointed by Republicans ruled against the mandate and most of the Democratic appointees upheld it, two judges broke away from the partisan pattern.) Two appellate courts — one in Cincinnati and one in Atlanta — have reached opposite conclusions. Three other cases are now awaiting appeals court decisions. Here is a scorecard of the rulings and trends emerging in the lower courts.

CONTESTED BATTLEGROUND The core fight is whether Congress, under its powers to regulate interstate commerce, can require people to buy private health insurance if they don’t want to. Although the law has many elements, the mandate is an important tool for reaching the goal of near-universal coverage — and needed to make health insurance reforms work.

The new law requires insurers to accept all applicants, even those with pre-existing conditions, and prohibits charging higher rates based on health status. Those highly popular changes will drive up premiums for private policies unless healthier people are forced to take out insurance, too. Without a mandate, many of those who lack insurance would typically end up with charity care (as they do now), where the costs are shifted to health care providers and taxpayers or are paid for through higher premiums for everyone else.

The health system’s interconnectedness is central to the reasoning of the 2-to-1 majority on the Court of Appeals for the Sixth Circuit in Cincinnati, which ruled that Congress can require Americans to buy insurance as part of its power to regulate both the insurance markets and the markets for delivery of health care services that virtually everyone uses.

The concurring opinion by Judge Jeffrey Sutton, who was appointed by President George W. Bush, is particularly compelling. “No matter how you slice the relevant market — as obtaining health care, as paying for health care, as insuring for health care — all of these activities affect interstate commerce, in a substantial way,” he wrote. Because not paying for insurance is an economic decision, Congress was within its power to regulate that action. In fact, he noted, decisions not to buy insurance have more impact on interstate commerce than some activities that the Supreme Court previously found could be regulated, such as a farmer growing wheat for his own use or an individual growing marijuana for her own use.

The 2-to-1 majority on the 11th Circuit appeals court rejected that view, ruling this month that Congress has no authority under the commerce clause to impose the mandate. The judges called the mandate “a wholly novel and potentially unbounded assertion of Congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”

WOULD IT ALL COLLAPSE? The rulings so far suggest that the rest of the law would remain standing even if the mandate was struck down — only one district judge has ruled that the whole law would have to be declared unconstitutional. The 11th Circuit appellate court found that all other provisions could survive without the mandate (how well they would function is a separate question) and that Congress would likely have passed the law even without the mandate included.

MEDICAID EXPANSION The law would substantially expand Medicaid, the joint state-federal health program for the poor. Twenty-six states have sued to strike down that expansion, which would enroll many millions of the uninsured, contending that it would encroach on state sovereignty and coerce them into spending more on Medicaid. That argument was dismissed by the 11th Circuit appellate court, which found that the expansion was not coercive since the federal government would pay most of the added costs and the states have ample time to set up alternative programs.

WHAT THE MARKET NEEDS While the individual mandate may not be popular in opinion polls, health insurance reforms, like coverage of pre-existing conditions, are exceedingly popular. Those reforms would work far less well without an individual mandate. The Supreme Court could take up any of these issues, skirt them, base its analysis on principles that the lower courts have avoided, or even create new law transcending its own past decisions.

Health care spending now accounts for 16 percent of the national economy, yet 50 million Americans are uninsured. How strange if Congress were disempowered in this critical arena. We hope the court will show judicial restraint and let elected political leaders determine what health care reform should be.

Target Health In The Public Domain




Target Health is pleased to announce that The Drug Information Journal has accepted a manuscript for publication entitled “Cost-Effective Approach to Managing Laboratory Reference Ranges for Local Laboratories in Clinical Research.” Our good friend and colleague Vadim Tantsyura, MS, MA, DrPH (c) is lead author, with co-authorship by Imogene Grimes, (Sr. Director, Otsuka Pharmaceutical Company); Jules Mitchel, PhD MBA (President, Target Health); Sergiy Sirichenko, MS (Principal Data Scientist, Pinacle21/OpenCDISC); Jim Crowe, MS (President, JT Crowe Consulting); and Deborah Viola MBA PhD (Associate Professor of Public Health Practice, New York Medical College).


Feature in Science Careers:


Target Health is also pleased to announce that Dr. Jules T. Mitchel was featured by Dr. Cliff Mintz in Science Careers (9 March 2012), in an article entitled Biotech Training Programs Expand Employment Options. In the article, the Fundamentals of the Bioscience (FBS) Industry Program is described where Dr. Mitchel is a Course Director.


DIA Presentation:


Lastly, on Tuesday, June 26, 2012 (1:30 pm-3:00 pm), at the 48th Annual Meeting of the DIA, Dr. Mitchel will participate in a Forum entitled “Effective and Efficient Monitoring as a Component of Quality Assurance in the Conduct of Clinical Trials.” The forum will present data collected from the Clinical Trials Transformation Initiative (CTTI) survey on clinical trial monitoring and auditing practices used by organizations to address regulatory requirements, provide a rationale for the re-evaluation of these practices, and summarize new industry trends in the areas of monitoring and auditing of clinical trials.


For more information about Target Health contact Warren Pearlson (212-681-2100 ext. 104). For additional information about software tools for paperless clinical trials, please also feel free to contact Dr. Jules T. Mitchel or Ms. Joyce Hays. The Target Health software tools are designed to partner with both CROs and Sponsors. Please visit the Target Health Website at

Primary Progressive Aphasia



Primary progressive aphasia (PPA) is a rare 1) ___ syndrome that impairs language capabilities. PPA is a type of frontotemporal lobar degeneration, a cluster of related disorders that all originate in the frontal or temporal lobes of the 2) ___. People with PPA may have trouble naming objects or may misuse word endings, verb tenses, conjunctions and pronouns. Symptoms begin gradually, sometimes before the age of 65, and tend to worsen over time. People can become mute and may eventually lose the ability to understand written or spoken language. People with the disease usually continue caring for themselves, working and maintaining their interests, sometimes for many years after the disorder’s onset.


Signs and Symptoms: Sign and symptoms may vary by individual, depending on which portion of the brain’s 3) ___ center is involved and may include:


  • Word-finding pauses in speech
  • Difficulty in naming objects
  • Difficulty with comprehension of spoken and written language
  • Misuse of word endings, verb tenses, conjunctions and pronouns
  • Inability to comprehend word meanings
  • Prominent spelling errors


Signs and symptoms may also vary depending on the speaking situation. For example, a person may need to pause frequently to find 4) ___ during a conversation requiring a high level of precision, but then have no pauses when exchanging small talk. Some people may have less trouble with written language than with spoken language.


Causes: PPA is caused by a shrinking (atrophy) of the central portion of the brain’s left hemisphere which is the language center. Scar tissue and abnormal proteins may also be present, and brain activity is often reduced.


Risk Factors: Risk factors for primary progressive aphasia include:


  • Having learning disabilities. People with learning disabilities, particularly 5) ___, are at higher risk of PPA, perhaps because both conditions involve using and understanding language.
  • Having certain gene mutations. Rare gene mutations have been linked to the disorder. If several other members of your family have had PPA, you may be more likely to develop it, too, but a genetic form of PPA is extremely rare.


Complications: People with PPA can become mute and may eventually lose the ability to understand written and spoken language. This generally happens within 10 years of diagnosis. As the disease progresses, other mental skills may become impaired. If this occurs, the affected person eventually will need help with day-to-day care. And 6) ___ is common in people who have PPA.


Communication Tests: Written and verbal tests pose questions that measure cognitive functions for attention, learning, recall and language. But because these tests depend primarily on language skills, their usefulness declines as the symptoms of primary progressive 7) ___ worsen.


Blood Tests: Doctors may order blood tests to check for other factors that can cause memory loss, such as infections, vitamin deficiencies, anemia, medication levels, and disorders of the thyroid, liver or kidneys.


Brain Scans: MRI or CT scans can detect strokes, tumors or other conditions that may affect brain function. SPECT or PET scans can be helpful if other scans do not show any abnormalities.

Treatments and drugs


Medications: There are no 8) ___ that specifically treat PPA. Some doctors have tried Alzheimer’s drugs but no studies have proved these drugs are effective. Experimental therapies will be available with increasing frequency in upcoming years.


Therapy: Speech and language therapy, focusing primarily on efforts to compensate for eroding language skills, can be helpful. If speaking and writing skills become limited, examples of alternate communication strategies include:


  • A series of cards that display specific messages, such as common requests
  • A word book, used by pointing to the words that can’t be articulated
  • Laptop computers containing digitally stored words and phrases or pictures


ANSWERS: 1) neurological; 2) brain; 3) language; 4) words; 5) dyslexia; 6) depression; 7) aphasia; 8) drugs

Primary Progressive Aphasia


Image of a Migraine painted in 1998 by Anne Adams, who was drawn to structure and repetition. She had a rare disease that changes connections between parts of the brain.



When Anne Adams completed Unravelling Bolero in 1994, her brain was starting to be affected by a neurodegenerative condition called primary progressive aphasia. It later robbed Adams of speech, and eventually took her life. In its early stages, however, the condition seemed to unleash a flowering of neural development in a brain area that integrated information from different senses. In part, Unravelling Bolero may be a beautiful symptom of a terrible disease. This is the view of a group of neurologists led by William Seeley and Bruce Miller of the University of California, San Francisco.


And here’s the jaw-dropper: Ravel is thought to have suffered from the same condition, which may have drawn him towards repetitive patterns such as the themes that cycle through Bolero. Adams was unaware of this, and of her own condition, while working on her painting. Trained in mathematics, chemistry and biology, Dr. Adams left her career as a teacher and bench scientist in 1986 to take care of a son who had been seriously injured in a car accident and was not expected to live. But the young man made a miraculous recovery. After seven weeks, he threw away his crutches and went back to school. According her husband, Robert, Dr. Adams then decided to abandon science and take up art. She had dabbled with drawing when young, he said in a recent telephone interview, but now she had an intense all-or-nothing drive to paint.


In 1994, Dr. Adams became fascinated with the music of the composer Maurice Ravel, her husband recalled. At age 53, she painted “Unravelling Bolero” a work that translated the famous musical score into visual form.


Unravelling Bolero, painted in 1994 by Anne Adams



Unbeknown to her, Ravel also suffered from a brain disease whose symptoms were identical to those observed in Dr. Adams, said Dr. Bruce Miller, a neurologist and the director of the Memory and Aging Center at the University of California, San Francisco. Ravel composed “Bolero” in 1928, when he was 53 and began showing signs of his illness with spelling errors in musical scores and letters. Bolero alternates between two main melodic themes, repeating the pair eight times over 340 bars with increasing volume and layers of instruments. At the same time, the score holds methodically to two simple, alternating staccato bass lines.


Bolero is an exercise in compulsivity, structure and perseveration,” Dr. Miller said. It builds without a key change until the 326th bar. Then it accelerates into a collapsing finale. Dr. Adams, who was also drawn to themes of repetition, painted one upright rectangular figure for each bar of Bolero. The figures are arranged in an orderly manner like the music, countered by a zigzag winding scheme, Dr. Miller said. The transformation of sound to visual form is clear and structured. Height corresponds to volume, shape to note quality and color to pitch. The colors remain unified until the surprise key change in bar 326 that is marked with a run of orange and pink figures that herald the conclusion.


Ravel and Dr. Adams were in the early stages of a rare disease called FTD, or frontotemporal dementia, when they were working, Ravel on Bolero and Dr. Adams on her painting of Bolero, Dr. Miller said. The disease apparently altered circuits in their brains, changing the connections between the front and back parts and resulting in a torrent of creativity.


“We used to think dementias hit the brain diffusely,” Dr. Miller said. “Nothing was anatomically specific. That is wrong. We now realize that when specific, dominant circuits are injured or disintegrate, they may release or disinhibit activity in other areas. In other words, if one part of the brain is compromised, another part can remodel and become stronger.” Thus some patients with FTD develop artistic abilities when frontal brain areas decline and posterior regions take over, Dr. Miller said. An article by Dr. Miller and colleagues describing how FTD can release new artistic talents was published online in December 2007 by the journal Brain. FTD refers to a group of diseases often misdiagnosed as Alzheimer’s disease, in that patients become increasingly demented, Dr. Miller said. But the course and behavioral manifestations of FTD are different. In the most common variant, patients undergo gradual personality changes. They grow apathetic, become slovenly and typically gain 20 pounds. They behave like 3-year-olds in public, asking embarrassing questions in a loud voice. All along, they deny anything is wrong. Two other variants of FTD involve loss of language. In one, patients have trouble finding words, Dr. Miller said. When someone says to the patients, “Pass the broccoli,” they might reply, “What is broccoli?” In another, PPA or primary progressive aphasia, the spoken-language network disintegrates. Patients lose the ability to speak.


All three variants share the same underlying pathology. The disease, which has no cure, can progress quickly or, as in the case of Senator Pete V. Domenici, Republican of New Mexico, who announced his retirement last fall because of an FTD diagnosis, over many years. Dr. Adams and Ravel had the PPA variant, Dr. Miller said. From 1997 until her death 10 years later, Dr. Adams underwent periodic brain scans that gave her physicians remarkable insights to the changes in her brain. “In 2000, she suddenly had a little trouble finding words,” her husband said. “Although she was gifted in mathematics, she could no longer add single digit numbers. She was aware of what was happening to her. She would stamp her foot in frustration.” By then, the circuits in Dr. Adams’s brain had reorganized. Her left frontal language areas showed atrophy. Meanwhile, areas in the back of her brain on the right side, devoted to visual and spatial processing, appeared to have thickened.


When artists suffer damage to the right posterior brain, they lose the ability to be creative, Dr. Miller said. Dr. Adams’s story is the opposite. Her case and others suggest that artists in general exhibit more right posterior brain dominance. In a healthy brain, these areas help integrate multisensory perception. Colors, sounds, touch and space are intertwined in novel ways. But these posterior regions are usually inhibited by the dominant frontal cortex, he said. When they are released, creativity emerges. Dr. Miller has witnessed FTD patients become gifted in landscape design, piano playing, painting and other creative arts as their disease progressed. Dr. Adams continued to paint until 2004, when she could no longer hold a brush. Her art, including “An ABC Book of Invertebrates,” a rendering of the mathematical ratio pi, an image of a migraine aura and other works, is at two Web sites: and Sources: The New York Times, and New Scientist


Pi……… Anne Adams.

The Effect of Rosuvastatin (Crestor) on Incident Pneumonia


Evidence from observational studies has raised the possibility that statin treatment reduces the incidence of certain bacterial infections, particularly pneumonia. As a result, a study published on line in the Canadian Medical Association Journal (19 March 2012), analyzed data from a randomized controlled trial of rosuvastatin calcium (Crestor) to examine this hypothesis.


For the study, data were analyzed from the randomized, double-blind, placebo-controlled JUPITER trial (Justification for the Use of Statins in Prevention: an Intervention Trial Evaluating Rosuvastatin). In the trial, 17,802 healthy participants (men 50 years and older and women 60 and older) with a low-density lipoprotein (LDL) cholesterol level below 130mg/dL (3.4mmol/L) and a high-sensitivity C-reactive protein level of 2.0mg/L or greater, were randomly assigned to receive either rosuvastatin or placebo. The incidence of pneumonia was evaluated on an intention-to-treat basis by reviewing reports of adverse events from the study investigators, who were unaware of the treatment assignments.


Results showed that among 17,802 trial participants followed for a median of 1.9 years, incident pneumonia was reported as an adverse event in 214 participants in the rosuvastatin group and 257 in the placebo group (hazard ratio [HR] 0.83). In analyses restricted to events occurring before a cardiovascular event, pneumonia occurred in 203 participants given rosuvastatin and 250 given placebo (HR 0.81). Inclusion of recurrent pneumonia events did not modify this effect (HR 0.81), nor did adjustment for age, gender, smoking, metabolic syndrome, lipid levels and C-reactive protein level.


According to the authors, data from this randomized controlled trial support the hypothesis that statin treatment may modestly reduce the incidence of pneumonia.

Burn Size and Survival Probability in Pediatric Patients in Modern Burn Care


While patient survival after severe burn injury is largely determined by burn size, modern developments in burn care have greatly improved survival and outcomes. However, no large analysis of outcomes in pediatric burn patients with present treatment regimens exists. As a result, a study published in The Lancet, (2012;379:1013-1021), was designed to identify the burn size associated with significant increases in morbidity and mortality in pediatric patients.


The investigation was a single-center prospective observational cohort study using clinical data for pediatric patients with burns of at least 30% of their total body surface area (TBSA). Patients were stratified by burn size in 10% increments, ranging from 30% to 100% TBSA, with a secondary assignment made according to the outcome of a receiver operating characteristic (ROC) analysis.


Between 1998 and 2008, 952 severely burned pediatric patients were admitted to the center. All groups were comparable in age (mean 7.3 years, ranging from 6.1 years in the 30-39% TBSA group to 9.6 years in the 90-100% TBSA group). Gender distribution was 66% boys, ranging from 59% in the 60-69% TBSA group to 82% in the 90-100% TBSA group.


Results showed that burn size of 62% TBSA was a crucial threshold for mortality (odds ratio 10.07; p<0.00001).


According to the authors, in a modern pediatric burn care setting, a burn size of roughly 60% TBSA is a crucial threshold for postburn morbidity and mortality and that on the basis of these findings, it is recommended that pediatric patients with greater than 60% TBSA burns be immediately transferred to a specialized burn center. The authors added that at the burn center, patients should be treated with increased vigilance and improved therapies, in view of the increased risk of poor outcome associated with this burn size.

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