CQ Healthbeat News: Florida Judge Skeptical of Individual Mandate in Health Care Law

CQ HEALTHBEAT NEWS
Dec. 16, 2010 – 6:59 p.m.
Florida Judge Skeptical of Individual Mandate in Health Care Law
By Jane Norman, CQ HealthBeat Associate Editor
The federal judge who heard arguments Thursday on a challenge to the federal health care law in a Florida courtroom appeared no warmer to the requirement that Americans have health insurance than he was in earlier sessions — and explored the impact of halting its implementation, said opponents and supporters who were in the courtroom.

That’s a step that a judge in a separate Virginia challenge to the law declined to take in a ruling earlier this week. Legal experts cautioned against reading too much into the Florida judge’s questions about the effect of an injunction to stop implementation. But opponents of the law remained optimistic it might happen.

“At least he’s open to it,” said Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, which is a plaintiff in the suit against the law.

The three-hour session in the Northern District of Florida courtroom in Pensacola provided fodder for both foes and backers of the law (PL 111-148, PL 111-152). District Court Judge Roger Vinson did not indicate when he would issue a ruling, though he said it would be as quickly as possible.

In October, Vinson had allowed the 20 states’ challenges to the individual mandate and the Medicaid expansion to move forward (See related story, CQ HealthBeat, Oct. 14, 2010).

Were Vinson to stop implementation of the law, legal experts couldn’t predict what form such a ruling would take — whom it would cover and whether it might apply to the entire law or just the individual mandate and Medicaid expansion.

On the Medicaid expansion, lawyers for the states contended they are being coerced into the Medicaid agreement. But Ron Pollack, executive director of Families USA, who was also in the courtroom, said that he believes Vinson indicated some “misgivings” about that. “It appeared clear the judge did not feel there was a strong argument to be made,” said Pollack, who’s a lawyer and whose organization filed a brief defending the law. Pollack said he came away feeling there was a “strong likelihood” the judge will deny the Medicaid argument.

He also said that Blaine Winship, special counsel for the Florida attorney general, who argued on behalf of the states, called the expansion “Medicaid on steroids.”

The expansion is expected to eventually add 16 million needy adults to the Medicaid rolls but the federal government will pick up most of the cost of the newly eligible.

Other observers said they were struck by a comment by Vinson that he didn’t have insurance for a period in his life and paid cash for the delivery of his son. That, they said, did not appear to bode well for the defense. Vinson’s remark came in response to an argument by government lawyers that health insurance is a form of interstate commerce and everyone eventually needs health care.

“A lot of people, myself included for years, have no health insurance,” Vinson said, according to the Associated Press. He said just because someone decides to be uninsured, that doesn’t give the government the power to intrude on people’s individual liberties.

Robert Alt, senior legal fellow at the conservative Heritage Foundation, watched a live feed of the arguments and said that there was “audible nervous laughter” from Department of Justice lawyers on hearing Vinson’s remark.

Alt characterized Vinson as “skeptical” of the defense of the law. “It tracked pretty closely” with Vinson’s earlier ruling allowing the challenge to go forward, said Alt.

However, Alt added, “my sense was he might not be terribly inclined to strike down the whole statute.” Federal District Court Judge Henry E. Hudson in the Virginia challenge ruled the individual mandate unconstitutional but allowed the rest of the law to stand, which supporters viewed as a partial victory. Hudson’s ruling was the first one that struck down any portion of the health law. Nearly two dozen other lawsuits were filed and so far two federal judges have already upheld the individual mandate.

Advocates on both sides agreed that Vinson seemed troubled by the idea of regulating health care and he wondered what activity might next be required by the government. According to the St. Petersburg Times, he compared it to requiring people to eat broccoli, exercise or join a gym.

Pollack said that much of the hearing was not very different from other cases in which opponents of the law have argued against the individual mandate. A key decision will be whether Vinson rules just the individual mandate as unconstitutional or the entire law, he said. Pollack said that was “very unclear” from the judge’s questions.

Harned, of the NFIB, said she “felt really good” about the plaintiffs’ arguments. She said it was clear the idea of how to make the individual mandate work “was still very much disturbing” Vinson.

Those who have been involved in formation of the law said they continue to support what Jonathan Gruber, a professor at MIT, called the “centrality” of the individual mandate. “You can’t have insurance market reform” without large pools of insured people including both the healthy and the sick, said Gruber.

Robert Zirkelbach, a spokesman for American’s Health Insurance Plans, which represents the industry, said that there was always broad agreement that consumer protections enacted as part of the law would cause significant disruption unless all Americans have coverage.

At the Pharmaceutical Research and Manufacturers Association, which represents drugmakers and supported the law, the reaction was much the same.

“We would be concerned if changes in the law, brought about by the courts or Congress, would erode coverage without offering viable alternatives that will provide access to health care for millions of Americans,” said Wes Metheny, PhRMA’s senior vice president.

Whatever Vinson rules, both sides expect the case to be appealed to the Supreme Court. Appeals would be made to the 11th U.S. Circuit, which is based in Atlanta and covers Georgia, Florida and Alabama. Generally three appeals judges hear cases but the losing side may then request that the entire appeals bench consider the case.

Vinson, a native of Kentucky, was nominated by President Reagan in 1983 to the bench and served as chief judge from 1997 until 2004, when he assumed senior status. He is a graduate of the U.S. Naval Academy and Vanderbilt University Law School who served in the Navy from 1962 to 1968 and was a lawyer in private practice in Pensacola before he was nominated.

The suit was brought by state attorneys general and governors minutes after President Obama signed the health care law in March. The defendants are the departments of Health and Human Services, Treasury and Labor and their secretaries.

Besides Florida, other states involved in the lawsuit are Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. Two individuals also are named, Mary Brown and Kaj Ahlburg. The National Federation of Independent Business is also a party to the suit.

Members of Congress have filed briefs in the case as have a host of advocacy groups on both sides of the argument.

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Source: CQ Online News
© 2010 CQ Roll Call All Rights Reserved.

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