Health Policy Solutions

Links to coverage of Supreme Court hearings from reporters inside the chambers:

From the Washington Post — The Supreme Court ended an extraordinary three-day review of President Obama’s health-care law Wednesday, seemingly deeply divided over whether such a sweeping overhaul exceeds the federal government’s powers.

During final oral arguments, the court considered whether the entire law should be junked if the individual mandate — the requirement that almost all Americans either buy health insurance or pay a penalty — is judged unconstitutional. And conservatives on the court seemed to take seriously the complaint from 26 states that the government’s plan to expand Medicaid violates basic tenets of federalism. …

From National Public Radio – With the fate of the health law’s insurance mandate in doubt, the last day of arguments before the U.S. Supreme Court became even more crucial to the future of the Obama administration’s central legislative achievement.

The issue before the justices Wednesday morning: Can the court strike down the mandate to buy health insurance but still uphold other parts of the law? In legal terms, is the mandate, or any other part of the law, “severable” from the rest?

In a recap right after the morning arguments ended, Nina Totenberg said, “It looked today that if there are five votes to strike down the mandate, there might be five votes to strike down the whole law.” …

From Fox News – On the final day of arguments over President Obama’s health care law, Supreme Court justices struggled Wednesday over what to do with the rest of the Affordable Care Act if they also rule that its central provision is invalid.

The question dealt with whether the entire health care law should stay or go or be revised if the so-called individual mandate — the requirement that everyone buy health insurance — is struck down. That, and a debate over the law’s Medicaid requirements, marked the final arguments in the landmark case, as court adjourned in mid-afternoon.

The mandate discussion centered on what to do now with this case but also on concerns over the proper role for the courts in interpreting what Congress would want done with a law that’s been changed from its original version. …

From the New York Times – On the third and final day of Supreme Court arguments over President Obama’s health care overhaul law, several justices on Wednesday indicated a reluctance to pick and choose among the law’s other provisions should the requirement that most Americans have health insurance be struck down.

The questions from the justices indicated that at least some of them were considering either striking down just the requirement, often called the individual mandate, or the entire law. …

From the Los Angeles Times – The Supreme Court’s conservative justices said Wednesday they are prepared to strike down President Obama’s healthcare law entirely.

Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the law’s controversial individual mandate to purchase health insurance means the whole statute should fall with it.

The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional. …

From CNN — video — Mandate appears ‘doomed’

Transcript of the hearing at NPR.org

By Diane Carman

After spending three days listening to the complex legal arguments before the U.S. Supreme Court on issues relating to the Affordable Care Act, Melissa Hart said she thinks the knee-jerk predictions of bloggers and pundits on how the justices will rule may be premature.

“People are reacting in my view too quickly to the tone of the arguments and questions and making judgments for what that means to the ultimate outcome of the case,” said Hart, associate professor and director of the Byron White Center at the University of Colorado School of Law.

Some justices were clearly aligned with one or the other side of the debate over the individual mandate, she said, “but others were still trying to sort things out.”

The questions from Chief Justice John Roberts and Justice Anthony Kennedy on Tuesday “reflected serious concerns,” she said, “and showed that both of them were still working through the issues.”

Hart, who clerked for Justice John Paul Stevens in 1996 and ’97, witnessed every argument before the Supreme Court during that term, but had not been back to the Supreme Court since. As a clerk, she came to each case with considerable background knowledge of the court dynamics.

“It was very different this time to be watching with absolutely no idea of what was going on” behind the scenes, she said.

Monday’s hearing on whether the court has jurisdiction in the case was the one element that seemed fairly predictable, she said. “No one among the justices seemed at all convinced that they didn’t have jurisdiction.”

Tuesday’s arguments about the constitutionality of the individual mandate – the heart of the case – were far harder to handicap.

Former Solicitor General Paul D. Clement, arguing for opponents of the law, “did a really fine job,” said Hart.

“He had two consistent message points that were straightforward and simple: That this changes the relationship between the individual and the government, and that it is creating commerce to regulate commerce.”

He repeated them several times, she said. “It was very effective political messaging, but it wasn’t what I would call the finest legal argument.

“I’ve seen him give much better legal arguments before, but it was very effective messaging.”

Solicitor General Donald B. Verrilli, Jr., seemed “off his game,” on Tuesday, she said. He repeated himself at the very beginning of his presentation and tried to compose himself, but “never quite came back from that.”

Some of the points Verrilli should have made in the courtroom fell to Justices Ruth Bader Ginsberg, Elena Kagan and Sonia Sotomayor to present.

“I thought that Justices Ginsberg and Kagan and particularly Justice Sotomayor actually articulated the reasoning for why it’s a market that’s being regulated and therefore it’s commerce better than he did,” Hart said.

The arguments today focused on two issues: whether the Affordable Care Act could survive if the individual mandate is struck down, and whether changes in Medicaid rules and payment incentives are coercive to the states.

Hart said it’s “very unclear” how the justices will rule on the severability question.

Three different positions were being argued. One contended that if the individual mandate is ruled unconstitutional, it invalidates the whole act. Another said that the act could stand without the individual mandate. A third argument was that portions of the act could not survive without the individual mandate, but the rest could stand.

“There was dissatisfaction with every option,” Hart said.

The next step for the court, Hart explained, will be for the justices to meet and take a preliminary vote on Friday. Then representatives on each side will be assigned to write an opinion. The opinions will be circulated among the justices and points will be debated.

“It’s entirely possible at this point that justices will change sides after seeing how the positions are written,” she said. “It happened at least once the year I clerked.”

The impact of the decision is unquestionably political and far-reaching, however.

Hart said that one of the most interesting aspects of the hearing Tuesday was the discussion that occurred around the aspects of the law that raised concerns about constitutionality.

“At some point it was clear that all the lawyers and justices appeared to think that if Congress had decided to do universal health coverage like Social Security, it would have been constitutional.”

The problem arose when the law included private insurers in the equation.

If the individual mandate is struck down and with it, the Affordable Care Act, Hart said it’s possible that some future Congress could enact a universal health care plan that is a government-run program and does not include private insurers at all.

“It’s interesting to think about that possibility,” she said. “It won’t be what opponents of the law thought would happen” when they decided to challenge the law.

No matter how the court rules, Hart said, the decision will be seen as intensely political, “which is really unfortunate for the court system.

“I wish that people had more respect for and trust in the judges to make decisions based on the rule of law, separate from their political preferences.”

For her part, Hart said she is “very committed to finding principled ways” to talk about both the legal process and the outcome.

“People who care about the rule of law have to take responsibility for how we talk about it,” she said.

A ruling is expected in late June.

By Diane Carman

Two years after Colorado joined the lawsuit challenging the constitutionality of the individual mandate in the Affordable Care Act, Attorney General John Suthers almost felt vindicated.

“Heartened,” was the word he used after he witnessed what he called the “very spirited” debate before the U.S. Supreme Court today.

“It was very cool,” he said. The courtroom was packed with senators, congressmen and “some of the best lawyers in the country.”

Even better, he said, was the line of questioning pursued by conservative justices. “It was very heartening to have the court zero in on the very issues we’ve been talking about.”

Those issues focused primarily on the limits of the Commerce Clause, including whether the government can require people to purchase a product – even one like insurance to pay for health care that everyone eventually will need.

“Right out of the box,” Suthers said, Justice Anthony Kennedy asked, “Can you create commerce in order to regulate it?”

For the attorneys general who filed the suit, it was a gratifying moment. “We faced a lot of criticism when we filed two years ago with people saying it was not going anywhere and that there was a lot of precedent for the individual mandate,” he said.

Suthers was among the group of six attorneys general who met months ago to develop a legal strategy and to hire former U.S. Solicitor General Paul D. Clement to argue the case before the court. The case for the government was presented by Solicitor General Donald B. Verrilli, Jr.

Clement “has tremendous experience in front of the court,” Suthers said. “Everybody I talked to, including people on both sides of the issue, felt he did a brilliant job.”

While he was clearly buoyed by the way the questioning went, Suthers said he’s “way too good a lawyer to make any predictions on this case.” He also cited at least one question that offered optimism to supporters of the Affordable Care Act. The very last question asked by Justice Kennedy, who is considered a potential swing vote on the court, was about aspects of the health care market that are unique.

Wednesday’s arguments will address the severability of the individual mandate from the act. The issue is whether the act itself must be thrown out if the individual mandate is found to be unconstitutional, or if it can survive in some form without that critical revenue stream.

Suthers won’t be in the courtroom for that session. He released his seat to another lawyer so he could attend a meeting elsewhere.

“I’m not sure what’s going to happen, but I feel good about the fact that the court took it very seriously, with six hours of arguments and they’re honing in on the right issues,” he said. “Obviously I’ll be respectful of whatever they do.”

Links to coverage of Supreme Court hearings on the Affordable Care Act from reporters inside the chambers:

From the Los Angeles Times — The Supreme Court’s conservative justices sharply attacked the insurance mandate that is at the heart of President Obama’s health care law, strongly suggesting Tuesday they are prepared to strike it down as unconstitutional.

Justice Anthony M. Kennedy described it as “unprecedented” for the federal government to impose an “affirmative duty” on people to buy a product. He was referring to the law’s requirement that everyone have minimal health coverage by 2014, or pay a penalty. …

From the New York Times  – With the fate of President Obama’s health care law hanging in the balance at the Supreme Court on Tuesday, a lawyer for the administration faced a barrage of skeptical questions from four of the court’s more conservative justices.

“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument.

Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.

Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cellphones. Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance. …

From the Washington Post — The Supreme Court’s conservative justices appeared deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty, as the court completed two hours of debate Tuesday on the key component of the nation’s health-care overhaul law. …

The arguments revealed a familiar alignment of the court. Its four liberal justices, appointed by Democratic presidents Bill Clinton and Barack Obama, supported the government’s argument. But one of the five conservatives appointed by Republican presidents Ronald Reagan, George H.W. Bush and George W. Bush would be needed to uphold the act, and all at some point resisted the government’s position. Their sharp questioning raised doubts about whether the individual insurance mandate could survive the Supreme Court’s historic review. …

From Fox News — The man often known as the Supreme Court’s swing justice posed tough questions about the scope of the controversial health care overhaul Tuesday, suggesting he might have doubts about its validity.

Justice Anthony Kennedy did not fully tip his hand as to how he might ultimately vote in the case — leaving all sides to ruminate for the next few months until an expected summer ruling.

On this most important day of arguments for the landmark case, most of the high court bench was thoroughly engaged for a two-hour debate over the constitutional merits of President Obama’s health care law. Based on the tenor of Tuesday’s arguments, the justices appeared to be closely divided and this case, as do so many other close ones at the high court, may ultimately come down to Kennedy’s vote. …

From Politico – The Supreme Court delved into the guts of the constitutionality of the Affordable Care Act on Tuesday, pressing both sides on whether the federal government can issue this ultimatum: Buy health insurance or pay a fine.

Longtime court watchers generally interpreted the questioning from the five more conservative justices as a bad omen for the Obama administration. But oral arguments can be deceiving; a final ruling isn’t expected until June. …

From Mother Jones — Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy. …

From the Christian Science Monitor – The centerpiece of President Obama’s health-care reform law appeared Tuesday to be in serious peril after oral arguments at the U.S. Supreme Court on the constitutionality of the law’s individual mandate.

Based on comments and questions posed during the two hour session, the nine-member high court seems to be divided 5 to 4 on whether Congress has the authority under the Constitution’s Commerce Clause to order every American to buy a government-approved level of health insurance or pay a financial penalty. …

From CNN – Video – Mandate in grave trouble

Transcript of hearing at NPR.org

By Diane Carman

For Colorado’s kids the secret to good health and well-being comes down to three words: location, location, location.

That’s the message in the findings of the 19^th annual Kids Count report released today by the Colorado Children’s Campaign.

“Where kids live has a significant impact on access to quality services and schools,” said Lt. Gov. Joe Garcia, who called for the state to work harder to improve access to programs to help struggling families. “Your Zip Code should not limit your opportunities.”

The report focused on the 25 largest counties in the state where 95 percent of the state’s children live. In an overall ranking, it found Douglas County (by most measures the richest county in the state) ranked No. 1 for child well-being. Denver County ranked 25.

Child poverty, which had nearly doubled between 2000 and 2009, was flat in 2010, according to the report. At 17 percent, it’s still a concern, said Chris Watney, president and CEO of the Children’s Campaign, who said it’s too early to tell if the data signal a trend.

Chris Watney, president and CEO of the Colorado Children's Campaign

“Colorado has the 12^th-highest median household income in the country. To have 211,000 children living in poverty is unacceptable,” she said.

Among indicators of health, the findings revealed stunning discrepancies across the state.

• In Garfield, Eagle and Summit counties, 17.1 percent of children were overweight or obese, while in Morgan and Logan counties the rate was 40.1 percent.
• In Douglas County, 15 percent of families rely on low-cost food compared to 44 percent in Logan and Morgan counties.
• Teen birth rates were 7.7 percent in Douglas County and 59.2 percent in Pueblo County.
• The percentage of babies born with low birth-weights in Mesa County was 6 percent, while in Teller County the rate was 16 percent.
• Infant mortality rates were 4.18 percent in Douglas County and 8.24 percent in adjacent Teller County.
• Births to women will less than 12 years of education were 3 percent in Douglas County compared to 36 percent in Morgan County.

A positive finding in the report was the increase in the percentage of children who have health insurance. The report found that in 2009, 10 percent of Colorado children were uninsured, down from 12 percent in 2008.

“Much of this decline can be attributed to expanded access to critical public health insurance programs like Medicaid and the Child Health Plan Plus,” the report said.

The highest rate of uninsured children in the state was in Logan County with 19.5 percent uninsured. The lowest rate was 2.4 percent in Douglas County.

For these newly-insured kids, “now they can get the care they need” for treatment of illnesses and injuries and for preventative care, said Watney. “It’s a real bright spot in the report.”

Links to coverage of Supreme Court hearings from reporters inside the chambers:

From the Los Angeles Times: The Supreme Court justices, beginning an epic debate over President Obama’s health care law, gave no sign Monday they are inclined to put off a constitutional ruling on the mandate that all Americans have health insurance by 2014.

Instead, the justices in their comments and questions said they did not see a 19th century tax law as a legal barrier to ruling this year on challenges to the health care law.

Under the Affordable Care Act, those who do not have basic health insurance in 2014 must pay a penalty on their tax return to be filed in April of 2015. Under the old law, however, a taxpayer must pay his tax first and sue for a refund later.

But Justice Stephen G. Breyer, joining others, said he was not convinced that law stood in the way. Congress did not label the penalty a tax in the Affordable Care Act, he said. “It’s up to Congress, and they did not use the word ‘tax’,” he said. …

From CBS/AP – The Supreme Court plunged into debate Monday on the fate of the Obama administration’s overhaul of the nation’s health care system, starting with pointed questions about a legal issue that could derail the case.

A decision is expected by late June, in the midst of a presidential election campaign in which all of President Obama’s Republican challengers oppose the law and promise its repeal if the high court hasn’t struck it down in the meantime.

With demonstrators chanting outside, eight of the nine justices fired two dozen questions in less than a half hour Monday morning at Washington attorney Robert Long. He had been appointed by the justices to argue that the case has been brought prematurely because a law bars tax disputes from being heard in the courts before the taxes have been paid.

“Only Justice Clarence Thomas was silent,” CBS News legal analyst Andrew Cohen said. “He hasn’t asked a question in six years, and no one expected him to start today.” …

From the New York Times  — The Supreme Court on Monday began three days of epic arguments over the 2010 health care overhaul law with a sort of appetizer — a 90-minute debate over whether the Court yet has the authority to hear the case. Lawyers for both the Obama administration and challengers to the law took the same side on this question, arguing that the Court could hear the case now. The justices appeared receptive, suggesting that they will reject the argument made by an outside lawyer that it is too soon to rule. …

“This case presents issues of great moment,” said Solicitor General Donald B. Verrilli Jr., adding that the law, the Anti-Injunction Act, “does not bar this court’s consideration of the case.”

The case’s main event — arguments over the constitutionality of the law’s requirement that most Americans obtain insurance or pay a penalty — will not come until Tuesday. On Monday, the justices considered the Anti-Injunction Act, which says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” In other words, people who object to taxes must pay first and litigate later.

That is so, said Justice Stephen G. Breyer, because “taxes are, for better or worse, the life’s blood of the government.” …

From USA Today —  The Supreme Court opened three days of historic oral arguments on the fate of President Obama’s health care law by skeptically questioning whether an 1867 law should bar them from even considering whether the government can require Americans to purchase health insurance.

At the beginning of those arguments on Monday morning, justices on the court’s liberal and conservative wings seemed doubtful that the law, known as the Anti-Injunction Act, would serve as a roadblock to deciding the constitutionality of one of the Obama administration’s signature accomplishments. That law generally requires people to pay a tax before they challenge it in court.

The arguments had little to do with the core constitutional question – whether Congress can force people to buy health insurance – that has made the health care challenge one of the most-watched high court cases in a generation. Instead, the justices focused on a little-known tax law and pointedly questioned whether it would bar challenges such as this one, or whether the health law’s penalty for not buying insurance should be considered a tax at all. …

From Fox News – Imagine the captains of two Super Bowl teams meeting at midfield inside a stadium full of rabid fans waiting for the coin toss. Except the coaches are arguing with the refs over whether the footballs are in compliance.

The refs finally conclude they are not, and postpone the game. Nobody wins. Everybody goes home, grumbling about a missed opportunity.

The first day of hearings Monday at the Supreme Court over the federal health care overhaul risks this kind of unsatisfying outcome. …

From Reuters – U.S. Supreme Court justices signaled on Monday that they saw no procedural barrier to reaching the heart of the dispute over President  ’s healthcare law that requires most Americans to buy insurance or pay a penalty.

During nearly 90 minutes of oral arguments, the justices voiced doubt that a U.S. tax law requiring people to pay first and litigate later should delay the legal challenge to the president’s signature domestic legislative achievement….

PBS Newshour – In the first day of arguments before the Supreme Court about the health care reform law, the justices indicated extreme skepticism that the Anti-Injunction Act would bar them from ruling on the merits of the case.

“It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this Act,” said Chief Justice John Roberts, according to the court’s transcript. …

From Politico – As protesters chanted outside, the Supreme Court opened three days of hearings Monday on President Barack Obama’s landmark health care law by signaling that they will likely decide the core issues in the case now, rather than waiting until after 2014.

While the justices seemed eager to take up the crux of the legal challenges — whether Americans should be required to buy health insurance — the first day of arguments was something of a tease, offering few hints about how the court’s members are leaning on the constitutionality of the so-called individual mandate. …

Transcript of the hearing at NPR.org: CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case Number 11-398, Department of Health and Human Services v. Florida. …

Katie Kerwin McCrimmon

Georgetown law student Sandra Fluke, the woman Rush Limbaugh eviscerated as a “slut” and a “prostitute,” said Friday in Denver that birth control is not “recreational” and attacked legislation that would allow employers to opt out of health procedures based on religious objections.

“It’s just absolutely dangerous,” Fluke said of proposed measures both in Colorado and Congress. “The idea that any employer can deny coverage for any reason of any type of health care is so incredibly broad and could affect so many people’s access to health care for any number of things from blood transfusions to contraception to chemotherapy.”

Fluke was referring to both the Blunt Amendment that recently failed in the U.S. Senate and a Colorado measure, Senate Memorial 3, introduced by Sen. Tim Neville, R-Littleton. The measure calls the Obama Administration’s birth control policies an “attack on religion.”

Fluke, 30, came to Denver as part of an event to promote women’s health care on the second anniversary of the Affordable Care Act. Sponsored by a group called Know Your Care, the event featured Fluke, U.S. Rep. Diana DeGette, D-Denver, and other women health experts. Diane Carman, editor of Solutions, moderated the event.

In an interview after the discussion, Fluke said that she had never heard about a Colorado state senator’s disparaging tweet about her. Greg Brophy, R-Wray, praised Limbaugh and tweeted: “And Ms. Fluke, I don’t want to buy your booze, pay for your spring break or your birth control. Call your dad for that.”

U.S. Rep. Diana DeGette, left, and Georgetown law student, Sandra Fluke, celebrated the Affordable Care Act during a roundtable discussion on Friday in Denver.

Fluke wryly dismissed Brophy’s tweet, saying he clearly must be a supporter of the Affordable Care Act since he mistakenly thought that she was under 26 and would be eligible for health coverage under her parents’ plan, a new right young people have gained. In addition to advocating for birth control coverage, Fluke has praised the Affordable Care Act for helping young people access better health insurance. She also said that birth control is not “recreational.”

On the contrary, she said many conservatives support her position because birth control and other preventive health services save money and allow women to become better educated and get better jobs.

“To say that preventing unintended pregnancies is not a legitimate health goal is very short-sighted because we know that unintended pregnancies are difficult for our society in a variety of different ways,” Fluke said.

As for the personal attacks, Fluke said she’s merely experienced the kind of intimidation tactics that strong women have long endured.

“I think a lot of women know how this feels. They’ve been subjected to similar treatment and this is not the first time we’ve seen this. This is an old move from the playbook. This is how you try to get women to be quiet when they’re asking for things they need, especially when they’re asking for their reproductive rights.”

Fluke said the support she has received and the advertisers who publicly fled Limbaugh’s radio show, have signaled that her attackers are not going to succeed.

“Women are not going away. They want this kind of health care and they’re going to make their voices heard,” Fluke said.

Messages of support for Fluke and for women’s rights in general have poured into DeGette’s office since the so-called “war on women” began, DeGette said.

“What this did is woke young women up to a battle that women my age and older once fought,” DeGette said. “What Sandra has become is the face of young women who really think birth control and family planning are an essential part of women’s health.”

After the event, Fluke put on her backpack and said she was headed back to school to finish a paper. Despite the distractions of the controversy, she plans to complete law school in May. She said she has always been passionate about women’s health issues and reproductive rights and plans to continue her work on those issues in some capacity.

For now, she’s viewing all the attacks on her as an opportunity to discuss women’s health.

“If it takes a radio scandal, I’ll take it,” she said. “At least we’re talking about it.”

By Bob Semro

From the beginning, there was little doubt that the minimum-coverage provision of the Affordable Care Act, also known as the individual mandate, would end up in the Supreme Court. That provision requires most American citizens and legal residents to purchase a minimum level of health insurance coverage from a private insurer or pay a tax penalty.

More than two-dozen cases challenging the constitutionality of the mandate and the Affordable Care Act (ACA) were filed in 15 federal district courts. Several of the cases found their way to federal appeals courts, the highest judicial authority before the Supreme Court. Ultimately, two courts found the mandate to be constitutional and one found it to be unconstitutional. That latter ruling, rendered by the 11th Circuit Court of Appeals in State of Florida v. the United States Department of Health and Human Services, will be the foundation for the Supreme Court’s review of the new health care reform law.

Debate surrounding the mandate and the ACA has fallen along predictable partisan lines, but in the appeals court rulings, opinions divided in surprising ways. Two conservative jurists, appointed by Presidents Reagan and George W. Bush, helped write majority opinions that favored the mandate, and one of the judges who found it unconstitutional was appointed by President Clinton.

On Monday, the Supreme Court will begin three days of oral arguments (six hours, the longest scheduled arguments in court history). The ruling will be delivered at the end of June.

The court will consider several questions, but the most important of them will be the constitutionality of the individual mandate. Here are the main arguments for and against the mandate.

Is the mandate constitutional? The most fundamental and far-reaching of the issues that will be argued is whether the individual mandate is an appropriate use of Congress’ power under the Constitution to regulate commerce. This decision, whichever way it goes, will be a watershed event not only for the future of the Affordable Care Act but also for Congress’ authority to regulate commerce in a variety of markets that have nothing to do with health care.

The larger constitutional issues will focus on three main areas: 1) the unprecedented nature of the provision, 2) whether the mandate is a constitutional use of congressional authority under the Commerce Clause (Article 1, Section 8) of the Constitution and 3) will the implementation of the mandate open the door to ever-expanding federal authority, at the cost of state’s rights and individual liberties.

Unprecedented? An August 1994 report from the Congressional Budget Office describes the individual mandate as “an unprecedented federal action” in that “the government has never required people to buy any good or service as a condition of lawful residence in the United States.” In separation-of-powers cases, the Supreme Court has frequently said that a “lack of historical precedent can indicate a constitutional infirmity” in congressional legislation. Opponents contend that given the fact that we have not seen a similar mandate in more than 200 years of American history, the court should question constitutionality of the mandate.

Supporters say that every new proposal is in some way unprecedented. New laws such as the Social Security Act of 1935 or the Civil Rights Act of 1964 were unprecedented and were challenged constitutionally. Drawing a constitutional line in the sand against any new or novel national policy ignores both history and case law.

This issue did not significantly concern the two conservative judges who ruled the mandate constitutional. In his majority opinion, Judge Laurence Silberman of the District of Columbia Court of Appeals stated that the unprecedented nature of the mandate “seems to us a political judgment rather than a recognition of constitutional limitations.” And Judge Jeffrey Sutton of the 6th Circuit in Cincinnati suggested that the mandate may “offer one more example of a policy necessity giving birth to an inventive (and constitutional) congressional solution.”

Proper use of the Commerce Clause? The Commerce Clause states that Congress shall have power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Since the text of the clause is general,congressional authority has largely been dictated over time by case law. Since the New Deal, case law has significantly expanded Congress’ power to regulate interstate commerce.

Opponents say that the mandate is an inappropriate use of Congress’ commerce power, because for the first time, Congress will attempt to compel American citizens to purchase a private product that they may not wish to purchase, may never have purchased and may never use. The decision not to purchase health insurance, they maintain, constitutes commercial “inactivity,” which is not related to interstate commerce and therefore is not subject to regulation.

Opponents grant that Congress may regulate even non-commercial activity, if in the aggregate it has a substantial affect on interstate commerce; however, to compel an individual to actually engage in economic activity is a dangerous expansion of federal authority. As the majority opinion by the 11th Circuit Court of Appeals put it: Congress would require “individuals to enter into commerce so that the federal government can regulate them.”

Supporters argue that the mandate is a proper use of congressional authority because health care has a huge impact on the economy. In 2009, health care represented 17.6 percent of the national economy, and private and government insurance financed about 75 percent of all health care spending. The Affordable Care Act is, therefore, an appropriate vehicle for regulating interstate commerce in a coordinated way that states simply cannot do independently. Additionally, the mandate represents a constitutional solution because it focuses on stabilizing the entire health care market and is not merely regulating individual conduct.

Supporters of the mandate also point out that the language of the Commerce Clause does not distinguish between economic activity and inactivity. Additionally, no Supreme Court case has ever held or implied that the clause applies only to individuals actively engaged in commerce.

They also question the argument that individuals will never purchase or need health insurance or engage in economic activity regarding health care. Individuals cannot guarantee that they can or will remain commercially or economically “inactive.” To the contrary, it is a virtual certainty that at some point, an individual will become actively engaged in the health care market. Individuals cannot guarantee that they will not become sick. Without insurance, individuals cannot guarantee that they will be able to completely pay for their treatment. And unlike providers in other markets, hospitals cannot refuse service based upon an individual’s ability to pay. Thus, the real issue is how and when individuals will consume and pay for those services and not whether they will consume them.

Supporters discount the argument that people are simply “sitting alone in their homes and doing nothing” when they make the decision not to buy insurance. This decision to self-insure is a decision about how to manage future financial risk and is in itself an active economic decision. The decision to self-insure or purchase insurance represents two alternatives for addressing the same financial risk. One decision is no less “active” than the other, and each directly involves commerce.  In 2008, the uninsured were unable to pay for about 63 percent of the cost of their treatment, leaving some $43 billion in uncompensated costs that were passed on to insurers and then their customers. Those costs raised family health insurance premiums by an average of $1,000 a year.

One final consideration on the Commerce Clause: If the Supreme Court were to accept the distinction between “commercial activity and inactivity” as a legal precedent, it could create significant implementation problems across a variety of commercial markets. As Judge Sutton wrote: “… were ‘activities’ of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such ‘activity.’ … The Supreme Court has repeatedly rejected these kinds of distinctions in the past — disavowing, for instance, distinctions between ‘indirect’ and ‘direct’ effects on interstate commerce — because they were similarly unworkable.”

Slippery slope? One of the strongest legal arguments against the mandate is that it offers no limiting principle regarding even more expansive mandates. When courts evaluate a new expansion of Congress’ constitutional authority, they have historically wanted to see clear limits to those powers.

Opponents say that without such a limiting principle, there would be little to prevent expansion of Commerce Clause powers. They see no legal barrier to preventing lawmakers from compelling the purchase of other products from private industry in other markets.

Supporters argue that health care is unique among commercial markets because virtually everyone will use health care, hospitals must treat patients regardless of their ability to pay and those costs are inevitably shifted on to others. Opponents counter that even if health care is a unique market, that in itself does not provide a limit on Congress’ commerce powers. Moreover, courts would be required to judge every future mandate based upon the specifics of the market it attempts to regulate, and that should not be the responsibility of federal courts.

Opponents argue that the Constitution allows Congress to infringe upon state and individual sovereignty only in very limited circumstances. Without a limiting principle, the federal government could eventually, if not inevitably, chip away at the separation of state and federal powers. Ruling the mandate constitutional would fundamentally alter the relationship between federal and state government, as well as, the relationship between the federal government and individual citizens. In the words of the 11th Circuit Court of Appeals majority opinion, to compel Americans “to purchase insurance from a private company for the duration of their lives is unprecedented, lacks cognizable limits and imperils our federal structure.”

Supporters maintain that, even without a direct limiting principle, the mandate does not represent a slippery slope to unchecked federal power. They say that Congress and the courts are merely interpreting the scope of a long-established constitutional power, not creating a new constitutional right.

They say that existing Commerce Clause case law already provides a limiting principle because it demands that any future mandate must have a very direct and substantial impact on interstate commerce, that the health care market is so unique that the Supreme Court could limit its ruling to that one market alone, that protections found in the Bill of Rights would limit any direct impact on individual or personal liberties, and finally that since the mandate is a rational form of commercial regulation that states could not accomplish independently, it would not weaken the constitutional separation of state and federal power.

In the end, the decision about the constitutionality of the individual mandate rests in the hands of the nine justices of the Supreme Court. Regardless of which argument holds sway, their decision will forever affect health care in America and define the scope of federal authority in the future.

Bob Semro is a health policy analyst with the Bell Policy Center, a nonprofit, nonpartisan think tank based in Denver.

By Katie Kerwin McCrimmon

Do you wear a seat belt when you drive? Do you recycle? Do you think smoking is unhealthy?

It’s likely your answers are yes, yes and yes again.

But decades ago, cars didn’t have seat belts, no one bothered to recycle and once upon a time, Americans viewed smoking as glamorous, not as a killer habit to be uniformly condemned.

Education campaigns over years convinced people to change their attitudes. That’s the long-term goal of a new effort that is being launched today to engage Coloradans about important health coverage and care issues.

The campaign, Project Health Colorado, launches today with ads in both English and Spanish that will appear on TV, billboards, on the web and in newspapers across Colorado.

The campaign poses simple questions like: “Is health care in Colorado working?” and “Can you afford the health care you and your family need?”

The Colorado Trust, which is dedicated to achieving access to health for all Coloradans, is helping sponsor the new campaign.

“While some Coloradans have health coverage and the ability to receive quality health care, it costs too much or simply isn’t accessible for many families and individuals,” said Dr. Ned Calonge, president and CEO of The Trust.
“Making health care work better for everyone in our state requires that Coloradans have access to good information and are able to both speak up about health care challenges and propose solutions,” Calonge said.
The project includes on-the-ground work by a group of grantees along with a mass media campaign.

How will the effort change the conversation over health issues? For, Cathy Morin, one of the grantees and director of operational excellence for the San Luis Valley Regional Medical Center, the answer is simple.

“What I want to see at the end of the grant is that health care can no longer be used as a political football for the parties, meaning that people can think for themselves,” Morin said. “People are hungry for health information.”

As part of their health awareness campaign in southern Colorado, Morin and her partners ask people young and old how they can make their community healthier. In one small town, students said they had nothing to do and were bored after school. That’s why so many were smoking marijuana and drinking alcohol. Efforts are now under way to sponsor more activities for young people to create a healthier environment.

“Ultimately, we want all Coloradans to be able to get the care they need to stay healthy,” added Dr. Calonge. “Our goal is to help give Coloradans a say when it comes to making health care work.”

For more information, visit Project Health Colorado at www.projecthealthcolorado.org.

By Katie Kerwin McCrimmon

Colorado’s adult obesity levels recently jumped at the second-fastest rate in the country, a disturbing increase for a state that has long bragged of being the leanest in the nation.

“It’s not good news. If anything, it’s even more of a wake-up call. One of the things we know about obesity is it’s much easier to prevent than to reverse it. We’ve got the opportunity to use prevention in Colorado. We’re going to rapidly lose that,” said James O. Hill, director of the Colorado Center for Health and Wellness at the University of Colorado Anschutz Medical Campus.

The Colorado Health Foundation today released the 2011 Colorado Health Report Card. It found that for the first time ever, one out of every five Colorado adults is now obese. While Colorado remains the leanest state in the nation, our current obesity rates would have made us the fattest in the country in 1995.

An analysis of adult obesity data by the I-News Network found a divided state with obesity levels spiking in low-income areas of the eastern plains and southern Colorado while wealthier mountain resort communities post the lowest obesity levels in Colorado. On the plains, nearly one-in-three adults is now obese while in the western part of the state, the rate is half that. There, about one-in-six adults is obese, meaning they have a body mass index over 30.

The cost of rising obesity is steep to individuals, employers and the state as a whole. A new study published earlier this year in the journal Obesity found that Colorado spent $1.67 billion on obesity-related costs in 2009. The research team analyzed medical costs in all 50 states, then estimated the portion of costs linked to obesity.

“Rising obesity rates are having a big impact on Colorado’s health costs,” said Emily King, a research analyst with the Colorado Health Institute, which conducted the research and analysis for the Colorado Health Report Card.

King quantifies $1.67 billion by noting that it would buy five iPads for ever Denver resident.

A map of obesity rates shows a divided Colorado. On the eastern plains, as many as one in three people are obese. In wealthier mountain communities, the rates are about half that, with about one in six people weighing in as obese. Source: I-News Network. (Click on map to enlarge.)

“It’s twice as big as the number of Facebook users worldwide, and that many people would fill every major sports arena in Denver approximately 10,000 times,” she said.

Solutions reported last year that Colorado’s child obesity rate was the second-fastest growing in the nation. In 2007, Colorado had the third-lowest child obesity rate in the U.S. In the most recent survey, Colorado ranks 23^rd in the nation for child obesity.

Now adults here have the dubious distinction of also becoming more obese at a fast rate. And Colorado is no longer the last holdout state in the country that could boast obesity rates lower than 20 percent of its adults, ages 18 to 64. (To watch as the nation has shifted from relatively low obesity levels denoted by shades of blue, to an increasingly obese nation, denoted by shades of orange, click on these maps from the Centers for Disease Control and Prevention.)

From 2009 to 2010, according to the CDC’s Prevention’s Behavioral Risk Faction Surveillance System, Colorado’s obesity rate grew from 19 percent to 21.4 percent. That marked a one-year increase of 12.6 percent. Only Oregon, another traditionally lean state, fared worse, posting a one-year increase of 16.9 percent.

Hill and others cautioned not to read too much into a single year jump. What’s more, Hill said it’s not surprising that lean states could see faster rates of growth in obesity levels compared to states like Mississippi, where much of the population is already overweight or obese. Experts don’t know specifically why Colorado’s obesity rates have climbed recently and whether they will continue to increase at the same pace. It’s likely that children who have weight problems and don’t get help grow up to become obese adults. Everyone agrees the trend line is bad.

“Things are going to continue to get worse until we can get a better understanding of the causes of obesity and solutions that work,” Hill said.

“It’s going to take something big to make a serious dent in these high obesity rates. Somehow people don’t perceive this as a crisis. This is a crisis and we have to get together to solve it,” he said.

Colorado has an array of programs aimed at countering the obesity epidemic. These include building more sidewalks and playgrounds across the state, providing fresh fruits and vegetables in areas designated as food deserts, corporate wellness programs that reward healthier lifestyles, and LiveWell Colorado’s mass media and online campaign to shock adults into facing up to their own expanding waistlines. (Are you obese? Click here to see.)

The Colorado Health Foundation alone invested more than $37 million in Colorado nonprofits in 2011 to support its goal of making Colorado the healthiest state in the nation. Among recent anti-obesity victories, the Health Foundation cited the 2011 passage of HB 11-1069, which requires physical activity for all Colorado elementary students, along with LiveWell Colorado’s anti-obesity programs in 22 communities across the state. The Health Foundation pushes healthy snacks and meals in schools through support for LiveWell’s Culinary Boot Camps, which teach cafeteria workers to prepare healthy, fresh school meals.

The purpose of the Health Report Card is to monitor trends over time and to serve as a “call to action,” said Kelly Dunkin, vice president of philanthropy for the Colorado Health Foundation.

The foundation launched its “Healthy Living” investments in 2009. Reversing unhealthy trends, including Colorado’s rising obesity rates, will take time, she said.

“This obesity epidemic hasn’t occurred overnight, and the reasons are multi-faceted and complex, including individual choices – such as a sedentary lifestyle and poor nutrition choices – as well as external influences, such as socioeconomic factors, access, the environment, policies and culture,” Dunkin said.

The bottom line, said Hill, is that efforts so far haven’t shocked people into changing bad habits.

“We’re doing a lot of good things, but they’re not having a huge impact.”

In order to reverse the obesity epidemic, Hill said policymakers both in Colorado and across the country are going to have to come up with much bigger, more comprehensive solutions.

Even if the U.S. established taxes on sugary beverages and could dramatically cut fast-food intake, the forces of supersized, high-fat meals and well-financed, snack food giants are conspiring perfectly with Americans’ increasingly sedentary lifestyles to make us fatter and fatter.

Hill said obesity may be a more intractable challenge than cutting cigarette use.

Colorado's mountain communities boasted much better obesity rates than other parts of the state. Here, a resident of Grand County hikes to work. The Winter Park Ski Area is in the background. Photo by Diane Carman.

“Obesity is much more complex. With smoking, we know what to do. We help people quit. With obesity, so few things have worked,” Hill said. “Maybe it has to get worse. If kids started dying of heart attacks, people would say, ‘Oh my God. This is something that’s preventable.’”

In terms of a big solution, Hill thinks Colorado could start by becoming the first state in the country to start reducing obesity levels. The I-News analysis found only one Colorado locale where obesity rates are actually going down: Arapahoe County. There, the obesity rate has fallen markedly from above the state average in 2006 to below the state the state average in the latest survey. The most recent rate was 17.7 percent down from 20.3 percent in 2006.

Health experts don’t know why obesity levels are falling in Arapahoe County, which boasts a highly diverse population. But they all say it’s worth studying to see if the trend can be replicated elsewhere.

“Maybe there is something happening in Arapahoe County that no one has picked up on yet,” Hill said.

Burt Hubbard of I-News Network and Nancy Mitchell of Education News Colorado contributed to this report.