Supreme Court justices appear poised to sweep aside entire health-care law

Paul Clement, representing the 26 states challenging the law, urged the justices to invalidate the entire reform law and allow Congress to start over with “a clean slate.”

Deputy Solicitor General Edwin Kneedler countered during his argument that there were a full range of measures in the law that deserved to remain active and enforceable.

“This is a huge act with many provisions that are completely unrelated to market reforms,” he said.

He cited the provision that allows parents to maintain their adult children on their own medical insurance plans until age 26. He said 2.5 million more Americans have health insurance because of that one provision, which is not tied to the individual mandate.

The individual mandate requires every American to purchase a government-approved level of health insurance or pay a penalty.

The provision was enacted in part to increase the size of the national risk pool to help pay for expensive reforms that Congress wanted in the law. Among them is the guaranteed issue provision, a requirement that insurance companies may not reject a potential customer based on a prior medical condition or history. Another, the community rating provision, bars insurance companies from charging higher premium rates based on existing medical conditions.

Without the larger risk pool assembled under the individual mandate, some analysts believe the central provisions of the health-care law might collapse in a “death spiral” from a confluence of too many expensive benefits promised by Congress and too few premiums from relatively healthy individuals to pay for those benefits.

Others estimate that the guaranteed issue and community rating provisions would cause health insurance premiums to increase 10 to 25 percent without support from the individual mandate. 

Mr. Clement and the Obama administration are both arguing that if the individual mandate is declared unconstitutional the court should also invalidate the community rating and guaranteed issue provisions.

To facilitate a broader debate, the Supreme Court appointed Washington lawyer H. Bartow Farr to argue the position that the individual mandate – if struck down – is severable from all the remaining provisions of the health care law. In other words, the rest of the law would remain in full force in its entirety. That would include the expensive guaranteed issue and community rating provisions.

Whenever a court strikes down part of a law, there is a general presumption that the rest of the law will remain unchanged. But the test is whether Congress would have wanted the remaining provisions of the law to stand.

In arguments on Wednesday, Chief Justice John Roberts said that in the case of the health reform law, the test of severability poses an impossible task for the court.

He said there is no way to know how many of the provisions are central to the law and how many were tacked onto the massive health-care bill at the last minute as compensation for the support of a lawmaker.

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