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Healthcare and the Court: No Laughing Matter

GLORIA J. BROWNE-MARSHALL | 4/18/2012, 8:09 a.m.

Healthcare and the Court: No Laughing Matter

Supporters of the Affordable Care Act (ACA) call it the greatest civil rights legislation since the 1964 Civil Rights Act. Yet, conservatives denounce it as “Obamacare,” an unconstitutional invasion of American liberty.

All can agree the ACA is a matrix of multi-tiered reforms, programs and mandates. It is so complex that one U.S. Supreme Court justice, who must decide whether the ACA is constitutional, joked about not having read it all.

 At the heart of the ACA is the requirement to have health care coverage or risk financial penalty.

The act’s minimum coverage provision requires each person to be covered by health insurance by 2014. Besides the vocal opponents on liberty grounds, there are uninsured healthy people who rebuff mandated healthcare as unnecessary. They instead choose to wait for an accident or illness to purchase insurance.

Business owners, who cover their employees, receive a tax break under the ACA. But, they argue that the break is insufficient for businesses to survive the initial cost of buying health coverage for all of its employees. Also, they claim that they can only afford to pay for the poor and uninsured if those able to pay do so and increase the funding pool.

Many well-resourced challengers to the act appealed to the U.S. Supreme Court. During the first day of oral arguments earlier this month, the Court heard whether it was premature to hear these ACA cases given the Anti-Injunction Act prohibits lawsuits challenging taxes until the taxes are paid.

Passed in 2010, the ACA provides online applications for health insurance beginning in 2013. Mandated health insurance begins in 2014. The financial penalty for failing to acquire health insurance must be paid on the 2015 tax form.

Without any current tax liability, there may be no standing, or right, to challenge the ACA. Without deciding whether this financial penalty is a tax, the U.S. Supreme Court allowed arguments on constitutionality to proceed.  

Attorneys representing 26 states also challenged the ACA. Those states argued that the act’s requirement to expand their Medicaid enrollment to include all eligible people is an unconstitutional — and costly — encroachment on their sovereignty. Currently, millions of people, who are Medicaid eligible, are not enrolled.

The insurance companies argued that they cannot bear the costs of total coverage required under the mandate without guaranteed funding.

Under the ACA, insurers must join an exchange or marketplace where individuals and employers shop for insurance based on clearly listed coverage, types and rates. The federal government may withhold funds from states failing to comply or penalize insurance companies.

Lost in the legal debate are the necessary reforms in health care. Under the ACA, children are permitted to stay on their parents’ insurance plan until the age of 26. Also, those with preexisting conditions are protected, and mammograms and colorectal examinations are provided.

During oral arguments, America’s top civil attorney, Solicitor General Donald Verilli, stumbled while explaining to the Court how these ACA programs can avoid a slow “death spiral” if funding provided by the mandate ends.

Kathleen Sebelius, secretary of Health and Human Services, the deprtment responsible for implementing the ACA, refused to predict how the Supreme Court would ultimately rule. The Court must decide whether to strike down some, none, or all of the act, or to leave this historic healthcare legislation for Congress to fix.

Justice Elena Kagen queried that “half a loaf is better than none.” The states represented argued to the contrary.   

With tensions high during the third day of oral argument, Justice Scalia complained that reading over 2,700 pages of the ACA violated his Eighth Amendment protection against cruel and unusual punishment.

The Court’s ruling is due in June. If the ACA withstands judicial scrutiny, President Barack Obama should be heralded as a reformist like Franklin Roosevelt, famous for the New Deal, and Lyndon Johnson, who fought for the 1964 Civil Rights Act.


Gloria J. Browne-Marshall, an associate professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present” and “The U.S. Constitution: An African-American Context,” and is a journalist covering the U.S. Supreme Court.