Skip to main content

Advanced Search

Advanced Search

Current Filters

Filter your query

Publication Types



Newsletter Article


Supreme Court Leaves the Doors Open with Health Care Lawsuit Order

By Jane Norman, CQ HealthBeat Associate Editor

November 14, 2011 -- With its decision to hear arguments on the constitutionality of the health care overhaul, the U.S. Supreme Court swung open the door to a range of outcomes, any of which could have an enormous impact on federal policy—whether or not the law is left intact.

Whatever the landmark decision by the high court, it will come by June 2012, with Congress still in session, the Department of Health and Human Services (HHS) deep into implementing the law and states finishing the establishment of the health insurance exchanges that are key to bringing health insurance coverage to millions of Americans.

If the law is kept, doubts about it will finally be quashed and the federal and state government paths to full implementation will be cleared. If it's hobbled in any significant way, policy shifts might have to be made by lawmakers or HHS, and quickly. And if it's killed entirely, federal health policy will be thrown back to pre-overhaul days.

The law's requirement that every American have health insurance has been at the heart of the many lawsuits filed by the law's conservative opponents, one of which the high court said it will consider. Whether or not that individual mandate is constitutional remains central to the challenge filed by 26 states, the National Federation of Independent Business and two individuals.

The court could have simply taken up that question. But the justices traveled further, ordering arguments on not just the mandate, but also whether that insurance requirement can be severed from the rest of the law (PL 111-148, PL 111-152).

Their broadening of the arguments might mean the entire law would be struck down if the mandate is tossed. Or the mandate could just be separated from the consumer protections designed to ensure access for people in the individual and small-business markets. The Obama administration and health insurance industry officials have repeatedly warned that severing those protections would throw markets into turmoil. Without the mandate, insurers say, they wouldn't have the increased customer base necessary to pay the costs of such new protections as requiring insurers to cover people with pre-existing conditions.

Justices also somewhat unexpectedly said they will consider the expansion of Medicaid to millions of uninsured Americans and the states' viewpoint that they are being unfairly coerced into a new version of their longtime partnership in the federal-state program for the needy. Without the Medicaid mandate, it's unclear how those Americans who would qualify under the law's new eligibility rules would be covered.

And the court could just decide that it's not yet time to tackle the health care law because of a tax law called the Anti-Injunction Act (PL 72-65). That law says legal challenges to taxes can't take place until the tax is actually collected, and the penalty for not having insurance won't be levied until 2014.

That issue was first raised in a substantial way by the Court of Appeals for the 4th Circuit, in a decision tossing a suit against the law brought by Liberty University of Lynchburg, Va. An appeal by Liberty is still pending at the high court. But the justices decided they wanted to hear arguments on that question, even though it wasn't included in the original multistate suit.

Stakeholders React

The numerous possibilities at hand were clearly contemplated by stakeholders in their reactions following the court announcement.

Florida Attorney General Pam Bondi, whose state is leading the 26-state suit against the law, said that opponents will argue the entire law must go and a decision should not be put off until after the penalties are collected.

"We look forward to presenting oral argument and defending our position that the individual mandate is unconstitutional, that the entire law fails if one part fails, that the Anti-Injunction Act does not apply, and that Medicaid's expansion is unlawfully coercive," Bondi said in a statement.

HHS Secretary Kathleen Sebelius told reporters that the administration remains confident the law will be upheld and the timing on the Supreme Court oral arguments is good because it follows a series of appeals court decisions. All but one have held the law is constitutional. It is "important that we put to rest once and for all [the thought that] maybe the law will disappear," said Sebelius.

Rep. Pete Stark, a California Democrat and one of the authors of the law, said a decision in the law's favor will end GOP calls for repeal and let the law smoothly roll forward.

"I'm looking forward to a Supreme Court ruling that will force Republicans to join Democrats in governing instead of continuing their political grandstanding," Stark said in a statement.

Senate Judiciary Chairman Patrick J. Leahy, D-Vt., framed it as a question of congressional powers. "Most appellate courts have upheld the constitutionality of this historic law, and when the Senate voted to pass the Affordable Care Act, it also voted specifically on its constitutionality," Leahy said in a statement. "I hope the Supreme Court will defer to Congress in addressing this national problem."

What's important is settling the questions at hand quickly, GOP health care leaders opposed to the law said. Ways and Means Chairman Dave Camp and Wally Herger, chairman of the panel's Health Subcommittee, said in a joint statement they were "pleased that the court is acting swiftly to address the issues in this case so that the families, employers, and states can have some certainty going forward."

Representatives of patient advocacy groups who have filed court briefs supporting the law, such as the American Cancer Society and its Cancer Action Network, the American Diabetes Association, and the American Heart Association, said a fast decision is needed.

"We are optimistic that timely review by the nation's highest court will help to mitigate confusion and allow implementation to continue in a way that supports and strengthens provisions of the law that enable patients with chronic diseases to access quality, affordable health care," they said in a joint statement.

But some conservatives urged states to resist implementation and wait for the court to act.

"Too many questions remain about what portions of the law could be struck down, and every dime spent on the implementation of the law is one that taxpayers will never get back," Benjamin Domanech, a research fellow at the right-leaning Heartland Institute, said in a statement. "Responsible legislators, administrators, and governors ought to remain patient and see what the court decides before proceeding."

Some of the law's advocates differed. More than a dozen states have passed legislation to create exchanges, and several governors have signed executive orders, the Commonwealth Fund said in a statement. Some 89 percent of health opinion leaders said in a recent fund survey that it's important for the law to move ahead, the fund's leaders said.

Medicaid Involvement a Surprise

Particularly worrisome for the law's supporters was the injection of the Medicaid issue into court deliberations, since it was allowed to stand by a federal appeals court that struck down the individual mandate. "Since Medicaid was enacted in 1965, Congress has expanded the program many times without objection from the court," Ron Pollack, executive director of Families USA, said in a statement. "The federal government pays for the majority of Medicaid's expenses, and it is reasonable that it establish the ground rules for the program's operation."

The Medicaid issue is also unique in that it doesn't figure in any of the other legal challenges to the law. While not getting as much attention as the individual mandate, it has been very important to states pursuing the case.

"Given the substantial implementation costs associated with this 2,700-page law—and the unconstitutional mandate that it will impose on all Americans—we are pleased that the Supreme Court has moved quickly," said Texas Attorney General Greg Abbott.

The court's five and a half hours of arguments on the case also apparently will include two justices who different groups have said should recuse themselves from deliberations.

Elena Kagan, the former solicitor general, should not hear the case because she was involved as an administration official, Republicans say. And Clarence Thomas' wife was involved in lobbying against the health care law, Democrats say. Neither Kagan nor Thomas indicated in the order that they would step aside, all nine justices to decide the cases.

Publication Details