Thursday, June 28, 2012
This morning, in a decision awaited with more anticipation and attention than any other I can remember, the Supreme Court upheld the constitutionality of the requirement in the Affordable Care Act that all individuals purchase health insurance. The vote on the individual mandate was 5-4, with Chief Justice Roberts providing the key swing vote.
Although much of the discussion of the individual mandate had focused on Congress’ power under the Commerce Clause, it was Congress’ taxing authority that convinced Justice Roberts of Congress’ power to mandate that individuals purchase insurance. The Act provides that those who fail to comply with the mandate must make a “shared responsibility payment” to the Federal Government, a “penalty” to be “assessed and collected in the same manner” as tax penalties. Writing for the majority Justice Roberts wrote, “[o]ur precedent demonstrates that Congress had the power to impose the [individual mandate] under the taxing power, and [the mandate] need not be read to do more than impose a tax. This is sufficient to sustain it.” He made clear that individuals may choose to pay the tax in lieu of purchasing insurance. In a concurring opinion, Justice Ginsberg, writing on behalf of herself and for Justices Sotormayor, Breyer and Kagen, indicated that she would uphold the mandate under the Commerce Clause.
With the survival of the individual mandate, major provisions of the Act, a number of which found support even among those who opposed the individual mandate, remain in place. Thus, for example, the Act’s requirements that plans may no longer put lifetime limits on essential health benefits or impose limits on pre-existing coverage and must provide for coverage for adult children until age 26 remain in place. (The Act did not completely survive. In a 7-2 decision, the Court struck down the provision of the Act forcing states to expand their Medicaid coverage to the poor. It ruled that the federal government lack the power to terminate Medicaid funds to state who do not wish to expand, but left open to states the ability to opt into an expanded Medicaid program.)
Today’s decision is not likely to end the battle over health care. Foes of the individual mandate will be gearing up in the hope that the November election leads to enough additional Republican votes to cause Congress to repeal the Act. In addition, there has been a lot of infighting at the state level over implementation of the Act, particularly the establishment at the state level of exchanges through which people buying insurance can get coverage. Many states have refrained from moving forward with establishing the exchanges, waiting for today’s decision. It would not be surprising to see the federal government having to step in to manage efforts in cases where the states drag their feet.
And, to move to an issue that we have explored with some frequency on MOJ, the Court’s decision to uphold the Act means that the controversy over the requirement that employers provide contraception coverage for their employees remains a live one. The statement issued by the USCCB in light of this morning's decision is here.
Update: With thanks to Elizabeth Brown, tehe Cathlic Health Association statement is here.