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News March 27, 2012
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Legal Health and You

B. Allen Bradford, Esq.

This column is primarily for individual consumers, physicians, small businesses and small health care companies. Big hospitals and insurers play a vital role in the American health care system and I have nothing against them.  In fact, I spent 15 years inside the health insurance industry.  But the big players have plenty of very good lawyers to help them already.  My purpose here is to help others better understand how to navigate the health care system, which is sometimes bewildering, even to me. I’ll share observations on how the system works, your rights, the 2010 Affordable Care Act and other laws, and other topics that may have practical value. I welcome questions from readers, and may, with permission, share answers of general interest here.


We're off to the races! Supreme Court oral arguments have begun regarding constitutionality of the health care reform law. “Oral argument” is when lawyers on both sides (and some specially appointed by the Court) debate the pro’s and con’s of a case that’s been appealed to the Court.  First up today was the relatively obscure but very important question: may the Court even make a decision at this time? Click here to read a Washington Post article on the issue.

There will be 2 more days of oral arguments on the Affordable Care Act after today. (Here is a link to a good, fairly brief article on the process and the issues: The Health Law And The Supreme Court: A Primer For The Upcoming Oral Arguments).  Tomorrow (March 27, 2012) the Court will hear the arguments over the issue at the heart of it all:  whether the so-called “Individual Mandate” requiring all American citizens to purchase health care insurance is constitutional.  Specifically, the question is whether Congress has the power to make a law requiring that we all buy health insurance and provide subsidies for it.  The Obama administration’s lawyers are arguing that Congress’s power to regulate interstate commerce and levy personal taxes gave it the power to enact this law; lawyers for opponents argue that Congress’s interstate commerce power does not extend to forcing individual citizens to buy or sell any particular service or item, and that the law was not enacted pursuant to Congress’s power to tax.

Then on Wednesday (March 28), the Court will hear arguments over 2 other issues.  The more important one is regarding “severability.”  Essentially, the question is whether, if the Individual Mandate is found to be unconstitutional, must the entire law be stricken?  Or may the Court strike only the specific requirement that we all buy health insurance?  Surprisingly, Obama administration lawyers will be arguing that at least certain other parts of the law would have to be stricken if the individual mandate is stricken, specifically those regarding subsidies to help cover the cost of individual insurance and certain other insurance requirements.  The Court has asked a “special counsel” to make the argument that it could choose to strike only the Individual Mandate itself.  The second argument on Wednesday will be over whether the ACA’s requirement that states accept more Medicaid members is an unconstitutional intrusion into state powers, which I think is the weakest of the challenges--if the states don’t want the intrusion, they can simply choose not to continue their federal funded Medicaid programs.

Very important note: after this week's oral arguments, it'll be months before the Court hands down its rulings on the ACA. Also: S Ct rulings are typically based much more on the written briefs than oral arguments. But industry watchers will be looking very closely for clues about the Justice's thinking in the questions they ask the lawyers, with particular focus on Justices Kennedy and Scalia and Chief Justice Roberts.  That’s because most Supreme Court watchers assume all 4 Democratic appointees will vote to uphold the entire law, and they only need one of the 5 Republican appointees to join them.  Until almost a year ago, I thought the 5 Republican appointees would surely vote to kill the Individual Mandate and perhaps certain other parts of the ACA.  Following a couple of Appeals Court decisions upholding the law, both written by conservative Republican judges, I changed my opinion and now predict that at least Justice Kennedy will join the 5 Democrats in upholding the entire law. I’ll let you know after this week is over if that’s still what I think!