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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

ObamaCare’s Future Uncertain After Hearing

WASHINGTON (CN) - As arguments before the U.S. Supreme Court continued Tuesday on the Patient Protection and Affordable Care Act, justices compared the minimum-coverage mandate to a law that forces people to buy broccoli, cars, funerals and cellphones.

"Why do you define the market that broadly?" Justice Antonin Scalia asked Solicitor General Donald Verilli, who was arguing on behalf of the law. "It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant."

Scalia went on to compare the law, which mandates that most Americans must own some sort of health insurance or face a penalty, to forcing people to buy broccoli.

Verilli countered that the minimum-coverage provision simply says "that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary and proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market. "

Justice Ruth Bader Ginsburg was the most vocal supporter of the Affordable Care Act.

"I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later," she said.

Maryland Hospital Care, for example, bills 7 percent more because of medical services provided to patients without insurance, the justice noted.

Justice Stephen Breyer also defended the law when his colleague, Justice Anthony Kennedy, asked whether Congress can create commerce.

"Since McCulloch v. Maryland - when the court said Congress could create the Bank of the United States, which did not previously exist - since that time the answer has been, yes," he said.

Breyer told Verilli he should have confirmed for Kennedy that the government can require you to buy cellphones and burials "if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system."

Scalia, perhaps the most vocal justice during Verilli's arguments, disagreed. Regulating the health insurance industry is not "regulating in any manner commerce that already exists out there," he said.

Paul Clement, who served as solicitor general under President George W. Bush, met criticism from the court's liberal justices while arguing on behalf of the 26 states challenging the law.

"What do you do with the impossibility of buying insurance at the point of consumption? Virtually, you force insurance companies to sell it to you?" asked Justice Sonia Sotomayer, who was appointed by President Barack Obama.

Clement responded that there could be "some sort of mandate on the insurance companies" that would allow people to sign up when they seek medical treatment.

The two-hour debate on the law's mandate provision came after Monday's procedural discussion on whether the court has jurisdiction over the law. The arguments will wrap up on Wednesday, and a decision is expected by June.

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