The 'Heart' of Health Care Reform: Can the Law Stand Without a Mandate?

NFL New York Giants 90 Pierre-Paul Grey Super Bowl XLVI jersey During the summer of 2009, when the health care reform debate was dividing the country and the "public option" seemed like the most important policy issue in a generation, the proposal to require all Americans to have health insurance was hardly ever mentioned. The individual mandate, now the focus of a historic Supreme Court review, was just one part of a complex and broad overhaul of the nation's health care system. Medicare cuts, end-of-life counseling and a tax on high-cost "Cadillac" health insurance plans were a few of the provisions that attracted far more attention -- and criticism.

Despite flying under the radar for so long, the individual mandate is now being described by critics as the foundation on which the entire new health care law rests. Thanks to a constitutional challenge, the mandate's future is in peril. Although the High Court won't rule until June and predicting its decision is impossible for even the most seasoned experts, a Supreme Court hearing on Tuesday over the requirement's constitutionality left many health reform supporters worried it might not survive. If it falls and the rest of the law remains, however, chaos could follow, along with a host of unintended consequences like skyrocketing health insurance costs and even less access to coverage than exists today.

Paul Clement, a lawyer representing 26 states and a small business trade association, argued before the Supreme Court on Wednesday that the NFL jerseys / NHL jerseys / NBA jerseys / MLB jerseys entire law, which reorganizes one-sixth of the U.S. economy, must fall if the individual mandate can't pass constitutional muster. Taking the opposite stance, a court-appointment attorney, H. Bartow Farr, argued the Affordable Care Act should be left to stand as is, even without the mandate. Meanwhile, the federal government's lawyer, Deputy Solicitor General Edwin Kneedler, argued that two major insurance reforms -- to end discrimination based on pre-existing conditions and premium pricing based on health -- are too closely linked to the mandate to exist without it. Those must go if the mandate falls, Kneedler said, but the rest of the law should live on.

So what's likely to happen? One possible outcome is that the individual mandate is upheld as constitutional, which would make Wednesday's debate moot. If the Court comes down against the mandate, however, it must then grapple with the interdependency of the law's parts and Congress's intentions when it crafted the Affordable Care Act.

Justice Sonia Sotomayor, of the court's liberal wing, began the questioning during Wednesday's session by suggesting that even if nixing the individual mandate would cause collateral damage, it is a problem for Congress to solve, not one for the High Court to head off. "Why don't we let Congress fix it?" she asked.

Clement, arguing for cheap Rockies jersey the states, said federal lawmakers surely would not have wanted the Affordable Care Act to continue in dysfunction without an individual mandate, operating in a way at odds with the goals of the original law. Therefore, he said, it should be wholly struck down, leaving a "blank slate" for Congress to start over again to better address the crisis of rising health care costs. But the health care law is filled with a myriad of measures, some of which have nothing to do with the individual mandate or even health insurance. In what he called a "total off-the-cuff impression," Justice Stephen Breyer, of the court's liberal bloc, pointed out that provisions encouraging breastfeeding, aiding coal miners with black lung, placing doctors in under-served areas and requiring restaurants to publish calorie counts on menus are all elements of the Affordable Care Act unrelated to the individual mandate. Justice Ruth Bader Ginsburg, also left-leaning, pointed to a reauthorization of funding for Boston Bruins jersey cheap the Indian Health Services as one such element of the law. Should these just be discarded, Breyer asked.