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Supreme Court Arguments on the ACA: Foundation-Funded Materials to Aid Understanding



March 27th, 2012

As most people have heard, the U.S. Supreme Court is hearing oral arguments this week (March 26-28) on the constitutionality of various aspects of the Affordable Care Act of 2010. People have scrambled for seats at the court, and, according to what I heard in a news report, some have paid others to stand in line to get one of those sought-after seats. GrantWatch readers may be interested to see what content some of the foundations have produced to help the public understand the issues.

The issues are complex. I found this March 2012 Health Affairs article, “The ‘Sleeper’ Issues before the Supreme Court As It Reviews the Affordable Care Act,” helpful. Although much of the focus has been on whether the so-called individual mandate (the federal government calls this the “individual responsibility” provision) is constitutional or not, author T.R. Goldman cautions that three additional issues “are equally consequential.”

In a nutshell, here are the issues that Goldman neatly describes:

* Can the Supreme Court decide in 2012 about the constitutionality of the individual mandate, or must it wait until 2015 when the first penalty is assessed on people who do not sign up for health insurance? However, the court must first decide if that required payment is a penalty or a tax. If the court deems it a tax, citizens cannot sue until after the first tax is imposed in 2015.

* Can the rest of the Affordable Care Act stand on its own if the individual mandate is ruled unconstitutional? In other words, is it all or nothing?

* Under the Medicaid expansion called for in the Affordable Care Act, are states being unconstitutionally forced to cover many of the uninsured?

A transcript and audio files of the arguments heard March 26 are available here, on the Supreme Court website. Here is the link to the files for today, March 27.

As Goldman’s article notes, the justices are expected to decide on these four issues by late June 2012.

A Sampling of Informational Resources from Foundations

* “Beyond the Health Care Arguments: The Waiting Games,” Jane Norman of CQ HealthBeat (March 23) in the Commonwealth Fund’s March 26 Washington Health Policy Week in Review weekly newsletter. (As a public service under licensing rights it holds, Commonwealth provides selected articles, from CQ HealthBeat, for this newsletter.) Norman’s interesting article discusses possible scenarios and timetables.

* “Nixing Medicaid Expansion Would Leave Millions Uninsured Below the Poverty Line,” by John Reichard of CQ HealthBeat (March 21) in the Commonwealth Fund’s March 26 Washington Health Policy Week in Review weekly newsletter. (As a public service under licensing rights it holds, Commonwealth provides selected articles, from CQ HealthBeat, for this newsletter.) Suppose the Supreme Court blocks the Medicaid expansion, but the rest of the law stays intact? Could be a “political bombshell,” as one interviewee in Reichard’s article says.

* “A Reporter’s Guide to the Supreme Court Arguments on Health Reform,” webcast and transcript of a March 15 briefing sponsored by the Alliance for Health Reform, a nonpartisan, not-for-profit group, and the Robert Wood Johnson Foundation. Speakers included Lyle Denniston, the “dean of Supreme Court reporters” (this journalist has covered the high court for fifty-two years!), who now writes for SCOTUSblog. The Henry J. Kaiser Family Foundation (KFF) provided the webcast, podcast, and videos of individual speakers’ presentations. The alliance lists numerous source materials.

* “A Guide to the Supreme Court’s Review of the 2010 Health Care Reform Law,” KFF January 2012 policy brief prepared by MaryBeth Musumeci.

* “The Health Reform Law’s Medicaid Expansion: A Guide to the Supreme Court Arguments,” KFF March 2012 policy brief prepared by MaryBeth Musumeci.

* “Policy and Political Implications of the Supreme Court Case on the Affordable Care Act,” webcast and transcript of a March 14 KFF briefing. Speakers included Sheila Burke, faculty member, John F. Kennedy School of Government at Harvard University, and senior public policy advisor at Baker, Donelson, Caldwell and Berkowitz; Chris Jennings, president, Jennings Policy Strategies, Inc.; and Diane Rowland, KFF executive vice president.

* New York State Health Foundation hosted a conversation on March 15 with Abbe Gluck, associate professor of law and Milton Handler fellow at Columbia (University) Law School, about the issues before the Supreme Court. Go here to read more and view Gluck’s slides.

* “Supreme Court Hears First Issue: Jurisdiction,” March 26 news article by Christine Vestal on Stateline, the Pew Charitable Trusts’ nonpartisan, nonprofit online news service.

* “Can Congress Require Everyone to Have Health Insurance?” March 27 news article by Christine Vestal on Stateline.

Related GrantWatch Blog content:

“Why a California Foundation Filed an Amicus Brief with the U.S. Supreme Court,” by Robert K. Ross, president of the California Endowment, February 1.

*Don’t forget to check out our sister blog, Health Affairs Blog—this week it is publishing posts, by various legal scholars, about the issues before the Supreme Court.*

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