Health insurance for millions in peril -- Nov. 5, 2020 column

By MARSHA MERCER

With the future of health care in limbo during the prolonged presidential election, the Supreme Court next week will take up a case that could yank health insurance from 23 million Americans during a pandemic.

On Tuesday, the court will hear oral arguments in California v. Texas, which questions whether the Affordable Care Act, a.k.a. Obamacare, is constitutional. What the court ultimately decides could affect nearly every American family, not just those who buy their insurance through Obamacare.

Republicans have long argued Congress overstepped its authority when it imposed the individual mandate, requiring most Americans to buy health insurance or pay a penalty.

In 2012, the court upheld Obamacare 5 to 4. Chief Justice John Roberts, siding with the more liberal justices, wrote that since the penalty was collected by the IRS, it could be considered a tax and Congress has the power of taxation.

In 2017, Congress zeroed out the penalty. A group of red states challenged Obamacare, arguing a zero penalty means there is no tax and the law is unconstitutional. The Trump administration backs the red states.

After rounds in federal courts, a group of blue states supporting the law asked the Supreme Court to review the issues. The House is also defending the law, which remains in effect.

This time, conservative justices hold a 6 to 3 advantage. In a sign of the significance of the case, the court has lengthened arguments from the usual 30 minutes to 40 minutes for each side side.

Tuesday’s arguments may give us a glimpse into the mind of Justice Amy Coney Barrett, who said at her confirmation hearing, “I am not hostile to the ACA,” although as a law professor she wrote an article criticizing Roberts’s reasoning in the 2012 decision.

The current case raises the doctrine of severability -- whether a law can still stand if part of it is struck down. Barrett said she has not talked or written about severability.

The highest court could let Obamacare stand, abolish it entirely or do something in between. A ruling is expected by summer.

No one argues Obamacare is perfect. Many Americans bristled at being told they had to buy insurance, at paying a penalty if they failed to do so and at the cost.

But. Under Obamacare, insurance companies may no longer deny coverage to people with preexisting conditions like cancer, diabetes or sleep apnea; charge them higher premiums, subject them to long waiting periods or cap their benefits.

About 54 million Americans under 65 – or 27% -- have a preexisting condition that, before Obamacare, insurance companies could use to decline coverage on the individual market, an analysis by the Kaiser Family Foundation found. In Virginia, about 1.3 million people under 65 – or 26% -- have such conditions, the report said.

Besides protecting those with preexisting conditions, Obamacare also prevents insurers from charging women more than men, permits children to stay on their parents’ insurance policies until age 26 and offers subsidies to some customers to help pay premiums.

Most Americans get their insurance through their employers or a government program like Medicare or Medicaid, but no one knows when a job loss, divorce or other life event may require buying insurance on the individual or non-group market.

The pandemic and economic downturn prompted an additional 3 million Americans to seek help, raising the number covered under Obamacare to 23 million, according to the liberal-leaning Center for American Progress.

In the absence of Obamacare, COVID-19 could be considered a preexisting condition, and survivors could be denied health insurance.

President Donald Trump has promised since 2016 to repeal and replace Obamacare with something better and cheaper but has never presented a replacement plan.

He issued an executive order on preexisting conditions in September that experts said was symbolic and had no practical effect.

Obamacare has withstood more than 70 Republican attempts at repeal in the House and many judicial challenges.

Before the election, when it appeared the Senate and White House might flip blue, both Democratic presidential nominee Joe Biden and House Speaker Nancy Pelosi said they would work to strengthen Obamacare.

A Republican Senate led by Mitch McConnell makes meaningful change more difficult and raises the stakes for what the court decides.

Republicans and Democrats need to work together to write a law that works and people will accept. America will be healthier for it.

©2020 Marsha Mercer. All rights reserved.

 

 

 

 

 

Inside scoop on Supreme Court arguments -- March 22, 2012 column

By MARSHA MERCER

Here’s an insider’s tip on how to read the oral arguments at the Supreme Court next week:

To predict the likely winner of the epic battle over the health care law, keep track of the questions. The side that gets the most questions likely will lose.

That’s not just my guess. A few years ago, an up-and-coming federal appellate court judge studied 28 Supreme Court cases and found the most-questions-asked “rule” predicted the loser in 24 of the 28 cases, an 86 percent prediction rate.

“The secret to successful advocacy,” the judge observed dryly, “is simply to get the court to ask your opponent more questions.”

Judge John G. Roberts Jr. became chief justice of the United States in 2005. His comments in a June 2004 lecture to the Supreme Court Historical Society, printed in the Journal of Supreme Court History, provide a rare glimpse of how the chief justice views oral arguments.

“Oral argument matters, but not just because of what the lawyers have to say. It is the organizing point for the entire judicial process,” he wrote.

Roberts will open three days of argument Monday on constitutional challenges to President Obama’s health care law. A ruling, which could define the Roberts Court in American history, is expected by late June.

The Supreme Court usually grants only an hour for oral argument. To devote six hours to the health care law reflects the significance of the issues. And yet most people will never see the argument. No cameras are allowed, and only a few seats are available to reporters, sketch artists and the public. The court will release audio and printed transcripts every afternoon.

If you were to get in, you might get a headache trying to follow the rapid-fire action – even if you had read the legal briefs. That’s no mean feat as more than 170 briefs have been filed, reportedly more than for any case in history.

Gone are the days when lawyers had the time to methodically lay out their well-reasoned arguments. Instead, the justices power spray attorneys with questions from the get-go.

In his lecture to the historical society, Roberts, who clerked for the late Justice William H. Rehnquist and argued 39 cases before the Supreme Court, recalled his preparations for oral arguments.

“I always worked very hard on the first sentence, trying to put in it my main point and any key facts, because I appreciated that the first sentence might well be the only complete one I got out,” he said.

Roberts did the math and found that in a typical argument in 2003, there were 91 questions.

So do the arguments matter?

“Oral argument is terribly, terribly important,” said Roberts. It’s a time “at least for me – when ideas that have been percolating for some time begin to crystallize.”

When he reads briefs, his reaction typically is not, “Well that’s a good argument” or “That’s persuasive.” Instead, he’s thinking, “Says you. Let’s see what the other side has to say.”

But, he said, the doors begin to close with oral argument. “After all, the voting is going to take place very soon after, and the luxury of skepticism will have to yield to the necessity of decision.”

It seems antiquated indeed not to allow cameras in the courtroom, but barring them could help preserve the dignity of lawyers in a sometimes overwhelming situation.

It’s not a myth that lawyers have collapsed during oral arguments; Roberts recounted several incidents.

Nearly 70 years ago, the justices were exercised about facts in a commercial fraud case, and Justice William O. Douglas demanded to know who had written one of the affidavits – “at which point the lawyer fainted dead away, hitting his head on the table on the way to the floor.”

Court was adjourned and a doctor summoned. When the argument resumed, the lawyer, bruised but unbowed, stood, looked Douglas in the eye and admitted he had written the affidavit.

Roberts ends the story there. It suggests to me, though, that in places outside the media glare, decorum prevails.

© 2012 Marsha Mercer. All rights reserved.