Two of the judges hearing the health reform case in Atlanta on Wednesday were appointed by Democratic President Bill Clinton, with the third selected...

Two of the judges hearing the health reform case in Atlanta on Wednesday were appointed by Democratic President Bill Clinton, with the third selected by Republican President George H.W. Bush.

But it was difficult to detect ideological leanings – or hints about a final ruling – as the three judges of the 11th U.S. Circuit Court of Appeals aimed sharp questions at both the federal government’s attorney and the attorney for 26 states, including Georgia, that oppose the Affordable Care Act.

The judges’ frequent interruptions of the attorneys were riveting sequences during three hours of arguments in the ornate Atlanta courtroom, as the federal government appealed a federal judge’s decision in Florida that the health care reform law is unconstitutional.

The three judges probed areas of constitutional law, court precedents and health economics.

Two other appeals courts have also heard arguments on the health reform law. The Atlanta panel is expected to rule on the case within a few months.

Without a ruling rendered, spectators in the jammed courtroom were left speculating afterward on the questions and tone of the judges for signs of a future ruling.

Three federal judges, all Democratic appointees, have upheld the law. Two federal judges, both Republican appointees, have invalidated it.

Ultimately, the case will almost certainly be decided in the U.S. Supreme Court. The decision may be a defining case for the high court during the tenure of Chief Justice John Roberts.

Much of the arguments Wednesday in Atlanta centered on the law’s requirement that most individuals buy health insurance or face paying a penalty.

“Clearly we believe the most difficult issue in the case is the individual mandate,’’ said Chief Judge Joel Dubina, appointed by Bush, in his opening remarks.

Dubina said he was troubled that he could not find a precedent for the Affordable Care Act under the Commerce Clause of the Constitution, which allows Congress to regulate commerce. “I can’t find any case that’s written that’s just like this,’’ he said.

Dubina posed a question to Acting Solicitor General Neal Katyal, who was arguing the federal government’s case. If the judicial panel upholds the individual mandate to buy insurance, the judge asked, would there be any limits left on what Congress can require people to do?

How far can government go?

Katyal based his argument for the mandate on the billions of dollars that people without insurance cost the health care system when they don’t pay for their medical services.

“We’re talking about $43 billion’’ annually in such costs shifted to people who already buy insurance, Katyal said.

But Paul Clement, the lead attorney for the 26 states, replied that it’s unconstitutional to force someone to purchase health insurance – essentially compelling an individual to engage in commerce.

The uninsured are ‘’not engaging in commerce,’’ Clement argued. “Compelling somebody is not regulating.’’

Judge Frank Hull noted that the health reform’s ban on pre-existing medical conditions is intertwined with the requirement that people – especially healthy individuals – buy insurance.

Clement acknowledged that it would be constitutional if a hospital compelled individuals to buy coverage when they arrived at an emergency room needing treatment.

Katyal argued later that it’s just a matter of timing – when the actual purchase is completed.

Judge Stanley Marcus asked Katyal whether the federal government could force an individual to buy long-term care insurance. Dubina later asked about whether life insurance or flood coverage could be required.

Katyal said a key factor would be if there was cost-shifting involved, and that in the latter cases, there is nobody else paying the bills.

Hull repeatedly focused on whether insurance requirement provisions could be struck down without invalidating the entire law.

Historic hearing draws a crowd

Clement said the mandate is the “driving force’’ behind the reform law. He also said the law compels states to take on huge costs to cover those eligible for Medicaid but not enrolled.

“It’s a very difficult case,’’ Dubina concluded, and one that he said will affect all Americans.

The importance of the case was clear earlier, when reporters, attorneys and others stood in line beginning at 5 a.m. outside the 100-year-old court building on Forsyth Street.

Among those early birds was Attorney General Sam Olens of Georgia. Olens told reporters that the Supreme Court ‘’will pay a lot of attention to the individual [court] decisions.’’

“We feel very good about today’s arguments,’’ he said.

Also in the audience in the wood-paneled courtroom was former Florida Attorney General Bill McCollum, who brought the original lawsuit against the Affordable Care Act, passed in 2010. Current Florida Attorney General Pam Bondi, among many others, came for the hearing as well.

The Associated Press reported that outside the courthouse, about 75 people gathered on the sidewalk, carrying signs with messages ranging from “Hands off my health care” to “No taxpayer funded abortion” and “Throw the socialist out of the White House.” No chanting was permitted, and one woman who kept repeating “No more Tea Party” was escorted away by a courthouse security officer.

Here’s the Daily Report’s take on the hearing, as interviewed by Kaiser Health News.

 

 

 


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Andy Miller

Andy Miller is editor and CEO of Georgia Health News

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