Justice Scalia: Reform without individual mandate would bankrupt payers

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On the third and final day of Affordable Care Act hearings, the Supreme Court justices addressed the issue of severability--that is whether the rest of the healthcare reform law should be struck down if the individual mandate is ruled unconstitutional.

Deputy Solicitor General Edwin Kneedler, who represented the Obama administration, argued that the health reform law is a "huge act with many provisions that are completely unrelated to market reforms and operate in different ways." He urged the court to determine Congress's legislative intent when it drafted the law, suggesting that Congressional lawmakers didn't intend for the whole reform law to fail just because it lacked an individual mandate.

However, if the Court does decide to strike down the mandate, Kneedler argued that the court only need to invalidate the provisions prohibiting insurers from denying coverage for any applicant and from charging higher prices to members with pre-existing conditions.

As with the question of the individual mandate, the high court appears divided.

Justice Antonin Scalia was particularly critical of Kneedler's arguments.

"My approach would [be to] say 'If you take the heart out of the statute, the statute's gone,'" Scalia said. "One way or another, Congress is going to have to reconsider this, and why isn't it better to have them reconsider it in toto, rather than having some things already in the law [that] you have to eliminate before you can move on to consider everything on balance?"

He also raised the concern that taking out some pieces of the Act and leaving others would have dire financial consequences for payers. 

The $2.5 million people under age 26 who have enrolled in insurance plans in anticiption of the the minimum coverage provision will "bankrupt the insurance companies, if not the states, unless this minimum coverage provision comes into effect," he said.

"There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere ... So you're just put to the choice of, I guess, bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure," he said.

Justice Anthony Kennedy, often a swing voter, wondered whether it would be too risky for insurance companies to eliminate the individual mandate while upholding the remaining reform law provisions. "We 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," he said.

On the other end of the spectrum, however, was Justice Ruth Bader Ginsberg, who seemed keen on keeping as much of the law viable as possible. "It's a choice between a wrecking operation ... or a salvage job. And the more conservative approach would be salvage rather than throwing out everything," she said. Similarly, Justice Sonia Sotomayor wondered whether forcing Congress to create an entirely new reform law would be an exercise of "judicial action."

The Supreme Court is expected to issue its ruling in late June.

To learn more:
- read the transcript or listen to the audio recording of the Supreme Court severability hearing

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