Speaking at the end of his time during the afternoon session Wednesday (March 28), Solicitor General Donald Verrilli pleaded with the nine justices to practice restraint regarding "a judgment of policy" by Congress that secures the "blessings of liberty" for millions of chronically ill Americans.
"The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment. ... Maybe they were right; maybe they weren't. But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it," Verrilli said.
"And I would urge this court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld," Verrilli said.
Verrilli's final appeal came after three days of arguments that did not appear to go well for supporters of a controversial law that has continued to roil the American public as its details have become better known and regulations implementing it have been released.
The oral arguments play only one role in the justices' consideration of a case, and predictions of a decision are often difficult based on their questioning. Yet, advocates for the law -- commonly referred to as Obamacare -- likely had to wonder after the tenor of the arguments what parts, if any, of the massive measure will survive when the high court issues an expected June ruling.
Casey Mattox of the Alliance Defense Fund (ADF) told Baptist Press he doesn't "doubt that comes in part with a little concern that the court was not hearing their arguments" as the Obama administration had hoped.
The administration "seemed to come into this week feeling" it was in a strong position, but it has "to leave this week feeling less confident" about its position, said Mattox, legal counsel for ADF.
Mattox said he certainly feels "much more confident now that perhaps the court may strike down the law." He identified the law's mandates affecting abortion funding and religious liberty as his primary concerns.
The issue at the heart of the oral arguments was the "individual mandate" -- the law's requirement that Americans buy health insurance or pay a penalty. Observers on both sides sensed the court may have been signaling a willingness not only to nullify the "mandate" but the rest of the law as well.
"t seems likely that most or all of the law is going to share the fate of the individual mandate," said Carrie Severino, chief counsel for the Judicial Crisis Network, in a commentary for National Review Online.
A day after at least four justices expressed strong reservations about the "individual mandate," the same ones demonstrated March 28 skepticism about letting the remainder of the law stand. The morning arguments that day dealt with severability -- whether an invalidated "mandate," which is to provide much of the new revenue for the increase in health care, can be severed from the rest of the law or whether the entire law should be nullified if that vital provision is struck down.
When Deputy Solicitor General Edwin Kneedler urged "judicial restraint," Associate Justice Anthony Kennedy -- often the swing vote in the court's 5-4 decisions -- told him the court might exercise more restraint by invalidating the whole law.
The justices "would be exercising the judicial power if ... one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said. "By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than ... striking the whole."
Associate Justice Antonin Scalia asked Kneedler, "Can you take out the heart of the act and leave everything else in place?"
Scalia made his position clear later. "My approach would say if you take the heart out of the statute, the statute's gone," he said. "That enables Congress to do what it wants in the usual fashion. And it doesn't inject us into the process of saying: This is good, this is bad, this is good, this is bad."
The court also challenged the arguments of former Solicitor General Paul Clement for scrapping the whole law.
Associate Justice Ruth Bader Ginsburg described it as "a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything."
Clement argued that the law's "community rating" and "guaranteed issue" provisions -- which mandate the same premium rates regardless of age or health and require plans to allow enrollment irrespective of condition, respectively -- could not survive without the "individual mandate." Congress made that finding, and the administration acknowledged it, he told the justices.
The "mandate" is not "just a tool; it's the principal tool," Clement said. "It's a tool to pay for it, to make it affordable."
In afternoon arguments, the justices considered whether the law unconstitutionally coerces states by its vast expansion of Medicaid, the cooperative in which states agree to federal conditions in exchange for receiving funds to provide health care for the needy.
The law, which takes full effect in 2014, provides for federal payment of 100 percent of Medicaid costs in the expansion through 2016. After that, it reduces the federal share to 90 percent by 2020.
The conventional wisdom appeared to be the court was unlikely to find the federal government is unconstitutionally compelling states with the provision, but Mattox and others expressed surprise afterward that the court signaled it may rule in the states' favor.
Clement met strong resistance from some justices to his argument that it is coercive, but Chief Justice John Roberts and others seemed unsettled with Verrilli's defense of Congress' action.
Associate Justice Elena Kagan asked Clement why "a boatload of money" from the federal government to the states without "matching funds" or "extraneous conditions" is a "matter of coercion." She said, "It doesn't sound coercive to me, I have to tell you."
The expansion is "uniquely coercive," Clement said, because of the size of the funding, the connection to the "individual mandate" and the leverage provided by previous participation in Medicaid.
Some justices expressed concern that the possibility of Medicaid funds being withdrawn by the federal government made the expansion seem coercive.
"There's no real choice," Kennedy told Verrilli. "And Congress does not in effect allow for an ... opt out."
Verrilli told the court, "The states are asking this court to do something unprecedented, which is to declare this an impermissibly coercive exercise of power."
In responding to Verrilli's final appeal, Clement said in closing he "would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."
Afterward, Sen. Mike Lee, R.-Utah, said the arguments suggested there may be five votes both against severing the "individual mandate" from the rest of the law and for ruling the Medicaid expansion is unconstitutionally coercive.
"I was quite surprised, in fact, by the degree to which I saw several justices indicate a high degree of skepticism toward the proposition that the as a whole could stand if the individual mandate is invalidated," Lee told reporters outside the court. Lee formerly served as a law clerk for Associate Justice Samuel Alito.
If there are five votes on the court for invalidating parts or all of the Patient Protection and Affordable Care Act, they likely would come from Chief Justice John Roberts, Associate Justice Clarence Thomas, Alito, Kennedy and Scalia.
Obamacare -- in combination with subsequent federal rules -- not only has elicited widespread opposition because of the "individual mandate" but because of other provisions, such as its federal subsidies for abortion and an abortion/contraceptive mandate that critics say violates religious liberty.
The Southern Baptist Ethics & Religious Liberty Commission, as well as other pro-life and religious freedom organizations, has protested those provisions and others. For instance, the law requires insurance plans in state exchanges to not disclose their abortion coverage until people are enrolled in their plans.
The law also mandates all plans cover contraceptives and sterilizations as preventive services without cost to employees. This includes contraceptives, as defined by the federal government, that can cause abortions of tiny embryos. The rule regarding that mandate has a religious exemption critics find woefully inadequate.
Tom Strode is Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
Copyright (c) 2012 Southern Baptist Convention, Baptist Press www.BPNews.net