Back in 2009, when critics of what was then a Health Policy bill, not a Health Policy law, muttered about legal challenges to the constitutionality of the individual mandate, a lot of people in the health policy world didn’t take it all that seriously. Sure, they thought the law would be attacked in court, but there was skepticism that the legal scholars on the other side would be able to mount a legally powerful, consistent argument that would put the law, or at least key sections of the law, in jeopardy.
They were wrong. The attorneys who oppose the law, including Randy Barnett and Paul Clement, made powerful arguments. The lower courts – and some intellectually influential appellate judges – have divided. Now it’s up to the Supreme Court.
To help you cover the extraordinary six hours of arguments over three days (without a television feed), we’ve done a tip sheet and resource guide. We asked legal writer T.R. Goldman to address five questions:
- Is the individual mandate’s “minimum coverage provision” that requires most people to obtain health insurance constitutional?
- If not – will the court strike the whole law down, or just certain sections (“severability”)?
- What role does Medicaid expansion play in the legal case?
- Can the court decide on the constitutionality of the mandate now, or under the Anti-injunction Act does it have to wait until mandate penalties are imposed in 2015?
- What are some tips for health reporters trying to cover this – particularly those covering from afar?
And on that last point – the bottom line is “Don’t assume anything.”
“The working assumption of many court watchers is that at least five Justices will vote to uphold the mandate’s constitutionality,” Goldman said. “There’s really no way to know, however, what the court will do.”
One last tidbit – not strictly health-relevant perhaps but interesting. In the 19th century, the oral arguments lasted for days – and attracted a crowd of spectators (before ESPN!)
Final thought – if you think the Supreme Court ruling is going to put an end to the controversy … You’re probably wrong.
Joanne Kenen (@JoanneKenen) is AHCJ’s health reform topic leader. If you have questions or suggestions for future resources, please send them to joanne@healthjournalism.org.
