published Monday, March 26th, 2012

Stakes huge as Supreme Court takes up health care reform law

The Disciplinary Council on Judicial Studies hosted a public forum on health care at the University of Tennessee at Chattanooga campus Wednesday. The forum addressed the constitutionality of health care reforms and spoke about the past, present and possible future of health care in the United States. Panelists, from left, were Dr. Clif Cleaveland; economist Dr. Bruce Hutchinson,  representative of Chattanooga Associated Health Underwriters; the Honorable W. Neil Thomas III, moderator; William M. "Mickey" Barker, retired Tennessee Supreme Court chief justice; and Tony Hullender, general counsel for BlueCross BlueShield of Tennessee.
The Disciplinary Council on Judicial Studies hosted a public forum on health care at the University of Tennessee at Chattanooga campus Wednesday. The forum addressed the constitutionality of health care reforms and spoke about the past, present and possible future of health care in the United States. Panelists, from left, were Dr. Clif Cleaveland; economist Dr. Bruce Hutchinson, representative of Chattanooga Associated Health Underwriters; the Honorable W. Neil Thomas III, moderator; William M. "Mickey" Barker, retired Tennessee Supreme Court chief justice; and Tony Hullender, general counsel for BlueCross BlueShield of Tennessee.
Photo by Jake Daniels.
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This week, the U.S. Supreme Court will hear arguments on health care reform — a historic case that will affect millions of Americans, likely have an impact on the fall presidential election and set the direction of American health care in the near future.

The six hours of oral arguments over three days are the longest set aside to hear a case since 1966 and may have as far-reaching implications as 1954’s Brown v. Board of Education, the decision that integrated public education.

Technically, the justices are examining the Florida v. the U.S. Department of Health and Human Services case. It comes to the high court from the 11th Circuit Court of Appeals in Atlanta and has been joined by 26 other states, including Georgia and Alabama, but not Tennessee.

“As I speak to the justices, I wish them the wisdom of Solomon,” Dr. Clif Cleaveland said last week during a public forum at the University of Tennessee at Chattanooga to discuss the case and its potential political fallout. “They have an enormous challenge on their plate. These are tough, tough decisions with moral implications.”

Retired Tennessee Supreme Court Chief Justice Mickey Barker; Tony Hullender, general counsel for BlueCross BlueShield of Tennessee; and UTC economist Bruce Hutchinson also participated in the forum held Wednesday.

At issue for the nine justices — four appointed by Democratic presidents and five by Republican presidents — is whether the health care law passed in 2010 violates the U.S. Constitution.

The House approved the bill in March 2010 by a 219-212 margin, as did the Senate on a 60-39 vote. No Republicans voted for it in either body.

The justices have been asked to hear four separate questions regarding the health care law:

• Whether Congress can pass laws to force individuals to buy health insurance or face a financial penalty.

• If Congress can make states expand their Medicaid coverage by saying it will withhold funding for the federal program if the states refuse.

• If one part of the law, such as the individual mandate, is struck down, does the rest of the law survive?

• Whether the suit filed against the law is premature and should wait until after the individual mandate has been implemented.

The individual mandate question is the biggest issue and is hinged on the court’s interpretation of the Constitution’s Commerce Clause, Barker said at the forum.

The clause authorizes Congress to “regulate commerce ... among the several states.” Separately, the Constitution permits Congress to pass laws that are “necessary and proper” to exercise its authority.

Since the 1930s, the Supreme Court had interpreted these clauses liberally. But in more recent cases, such as one in 1995 that struck down a federal law regulating guns near schools, conservative majorities have stressed congressional limits.

The states that have joined the lawsuit against health care reform say this is the first time in history that Congress has required someone to get into a market — in this case, the insurance market — and then regulated that market.

Lawyers representing the government will argue that everyone has, at some time, bought health care and the government is simply exercising its right to regulate that industry, Barker said.

“Both those arguments have a lot of merit,” he said.

Some parts of the health care law already are in effect, such as eliminating lifetime insurance limits, allowing young adults to stay on their parents’ coverage until age 26 and covering children with pre-existing conditions. The law provides free preventive services, free annual wellness visits and a 50 percent discount on prescription drugs for Medicare recipients.

Changes under the law saved Americans with Medicare $2.1 billion on their prescription drugs in 2011, according to data issued last week by the Department of Health and Human Services. Tennesseans saved about $49 million, the data show.

Other changes will include mandatory state health insurance exchanges so people can shop for health insurance, and requiring insurance companies to provide more preventive care.

The individual mandate, requiring everyone to buy health insurance or face a federal tax penalty, is scheduled to go into effect in 2014 and is considered the linchpin to the law.

Forty-one percent of U.S. residents surveyed this month hold favorable views of the law, and 40 percent hold unfavorable views, a Kaiser Family Foundation poll found.

Despite the broad changes to health care if the law is upheld, all four panelists at last week’s forum in Chattanooga said they do not expect the law to decrease health care costs significantly.

Hutchinson, a vocal opponent of the law, said any health care reform must be tied to people being aware of the cost of health care. Separating costs under current insurance methods means people make horrible decisions, he said.

“We are making a historic, enormous leap, what I call a catastrophic change. I would strongly suggest what is needed is not a great leap for mankind, but a small series of steps,” Hutchinson said.

Both Cleaveland and Barker said they think the Supreme Court will allow the individual mandate to stand; both predicted a 6-3 vote.

“I don’t think it will be close; they will want to make it a decisive verdict,” Barker said. “I do think the chances of it being held constitutional are greater than not.”

The Supreme Court is expected to issue an opinion by June, although Cleaveland said he would not be surprised if it went into September or later on a case of this magnitude.

McClatchy News Service contributed to this report.

This story was edited on April 2, 2012. A previous version incorrectly attributed a quote to Tony Hullender spoken by Bruce Hutchinson.

about Mariann Martin...

Mariann Martin covers healthcare in Chattanooga and the surrounding region. She joined the Times Free Press in February 2011, after covering crime and courts for the Jackson (Tenn.) Sun for two years. Mariann was born in Indiana, but grew up in Pennsylvania, Tennessee and Belize. She graduated from Union University in 2005 with degrees in English and history and has master’s degrees in international relations and history from the University of Toronto. While attending Union, ...

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