The nation’s highest court today held a hearing on one of the most contentious portions of the Obamacare law that is opposed by pro-life groups because of rationing and abortion funding concerns — the individual mandate.
The mandate requires Americans to purchase health insurance and the judges on the high court made it appear they are very skeptical whether the mandate is constitutional — so much so that many Supreme Court observers believe that the law is in trouble.
Potential swing vote Anthony Kennedy, a judge who sometimes sides with pro-life advocates and normally sides with conservatives in top cases but also favors Roe, appeared concerned that forcing people to purchase health insurance would lead them to be required to purchase other products ranging from cell phones to gym memberships, according to Washington Examiner reporter Philip Klein, who attended the hearings.
Kennedy, who is thought to be a swing vote in this debate, seemed very skeptical about the mandate — calling such an idea “unprecedented.” He told the Solicitor General that the government needed to answer a “very heavy burden of justification” to show how the Constitution authorizes Congress to require that people buy insurance.
Klein said Kennedy emphasized the unprecedented nature of the mandate and suggested government had a “heavy burden of justification” for it. Kennedy said the Obamacare law “changes the relationship between the individual and the government in a very fundamental way.”
“That’s my concern in the case,” Kennedy said, according to Reuters, noting that young, uninsured people affect the overall market by not paying into it and ultimately receiving care over the long term.
The four pro-abortion, liberal justices on the Court all appeared ready to defend Obamacare and each indicated that they believed the mandate was valid under the U.S. Constitution.
Meanwhile, Chief Justice John Roberts said if the mandate is upheld, government power will be without limits. Klein said Roberts also noted the mandate doesn’t just force people into the into emergency insurance market but forces them to pay for other benefits they may never need. Justice Samuel Alito compared the mandate to health insurance mandating everybody purchase burial insurance.
CNN Legal Analyst Jeffrey Toobin, following the Supreme Court arguments, suggested the future for Obamacare at the Supreme Court looks grim, based on what he saw during the hearing.
“This was a train wreck for the Obama administration,” he said. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… if I had to bet today I would bet that this court is going to strike down the individual mandate.”
Toobin went as far as saying he thought U.S. Solicitor General David Verrilli did a terrible job representing the Obama administration.
“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”
While some conservatives are concerned about Kennedy as the swing vote, Toobin said he is a “lost cause” for those wanting Obamacare upheld.
The nation’s highest court is expected to issue a ruling on Obamacare in late June.
Tom Goldstein of SCOTUS blog sums up the end of the arguments:
See audio and transcript of today’s arguments.