March 5, 2012
Later this month, the Supreme Court will hear challenges to the constitutionality of the landmark health care reform law known as the Affordable Care Act (ACA). On February 2, the law was tested by HSPH students in a Public Health Law class taught by Professor Michelle Mello.
“It’s the most significant piece of public health legislation in a lifetime,” Mello said. Students have been following the law’s developments with keen interest, so Mello chose to open the session of her class devoted to a case study on the ACA legal battle to the broader HSPH student population. A packed audience gathered in Kresge G-3 to hear Mello outline the background of the law and its legal challenges. Her students, previously assigned to represent either the plaintiffs (a group of 26 states and an independent business group) or the federal government, then proceeded to make their case.
Four key issues will be on the table when the justices hear oral arguments on March 26-28, 2012: the constitutionality of both the individual mandate, which requires most Americans to obtain health insurance beginning in 2014 or pay a penalty, and the expansion of Medicaid to cover more low-income individuals; whether the mandate is severable from the rest of the law; and whether the penalty for failure to comply with the mandate can be considered a tax. If so, then an obscure law called the Anti-Injunction Act, which prevents people from suing to prevent the collection of a federal tax until the tax actually takes effect, may be invoked to block the legal challenges until 2015.
In Mello’s class, students on the plaintiffs’ side of the room led off the debate by arguing that the mandate represents an overreach of Congress’s power to regulate interstate commerce. In this case, they argued, it would be regulating inactivity—the decision not to purchase health insurance—rather than commerce. They also expressed concern that the mandate would represent a slippery slope if upheld. If the government can require people to purchase health care, what’s stopping it from forcing people to buy other consumer products, like broccoli?
The students also took on the law’s expansion of Medicaid to cover individuals with incomes up to 133% of the federal poverty level, arguing that it infringes on state sovereignty. Threatening to withhold all Medicaid funding from states that do not implement the expansion crosses the line into coercion, they argued, something the Constitution does not allow.
The defendants rejected the slippery slope argument, stating that health insurance is a unique product. One reason is that a decision not to buy it involves clear social costs: when people seek emergency room care for which they are unable or unwilling to pay, it drives up insurance premiums for everyone. They also argued that the law regulates economic activity in that it targets consumers’ choices about how to finance their inevitable health care use. Expanding Medicaid does not violate state sovereignty and is not coercive, they said. States received plenty of notice about new Medicaid requirements, they have a choice about participation in the expansion, and most of the costs will be borne by the federal government.
After both sides presented their cases, the plaintiffs and defendants were asked to put aside their public health biases and vote on the legal merits of the case. Most voted to uphold the Medicaid expansion, but the verdict on whether or not to uphold the mandate was split.
Kirstin Scott, a health policy PhD student who will be writing one of her thesis papers on health care in the upcoming presidential election, said that “the exercise of trying to articulate both sides through a judicial lens was incredibly helpful. This class helped me better understand how to create legislation that withstands legal scrutiny in this polarized environment.”
Photo: Aubrey LaMedica