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Supreme Court mulls striking down health care law

Susan Clark of Santa Monica, Calif., protests against

Susan Clark of Santa Monica, Calif., protests against health care reform in front of the Supreme Court in Washington. (March 28, 2012) Photo Credit: AP

WASHINGTON -- The U.S. Supreme Court wrapped up historic hearings Wednesday by grappling with whether to strike down the entire health care law if justices decide that its "heart" -- the mandate to obtain health insurance -- is unconstitutional.

The question looms large for President Barack Obama and his signature legislative achievement after some conservative justices on Tuesday sharply questioned Congress' authority to require the mandate -- and one justice on Wednesday said that if the mandate is stuck he's ready to toss the entire law.

On the third and final day of more than six hours of arguments, Solicitor General Donald Verrilli, speaking on Obama's behalf, closed with a plea to uphold the entire Affordable Care Act because it would bring the "blessings of liberty" to millions of ailing poor people.

But Paul Clement, the attorney for 26 states and a private business group that filed the challenges, asked the court to reject the act in its entirety. "It's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not," Clement said.

The case is expected to be decided in June, amid presidential and congressional campaigns in which Republicans are making what they call "Obamacare" a key issue.

Over the past two days, conservative justices appeared more open to the constitutional challenge to the health care law than many experts had predicted.

"People's expectations have shifted radically on what would happen in this case," said Supreme Court expert Jeffrey Segal of Stony Brook University.

"The whole law school professoriate thought this was a slam dunk to uphold the law," Segal said. "But they have forgotten the lesson of the Supreme Court's conservative wing deciding the presidential election in Bush v. Gore."

In a 90-minute hearing Wednesday morning on what happens if the coverage mandate is invalidated, justices said they didn't want to go through the massive 2,700-page law to pick and choose what should remain in effect and what shouldn't.

Justice Antonin Scalia at first questioned whether the whole law should be invalidated, but by the end of the arguments he said, "If you take the heart of the statute out, the statute is gone."

Justice Ruth Bader Ginsburg urged a less sweeping step -- a "salvage job" instead of a "wrecking operation."

Deputy Solicitor General Edwin Kneedler said many parts of the law have nothing to do with the mandate to obtain insurance. Only the ban on insurance companies' denial of coverage and higher charges for people with health issues should be scrapped, he said.

Clement said most of the law was connected to the mandate and that only a hollow shell would be left without it.

When Justice Elena Kagan asked whether half a loaf wasn't better than no loaf, Clement said, "half a loaf is worse."

In an afternoon hearing that stretched longer than its one hour of allotted time, Clement argued that the health law's expansion of Medicaid unconstitutionally coerced states into going along with the federal government because they can't afford not to.

Kagan said that because the law gives states a "boatload of money" -- a subsidy of 90 percent of costs -- "it doesn't sound coercive to me."

Chief Justice John Roberts acknowledged that states might be in a bind of their own making, by having accepted so much federal money dating to the New Deal in the 1930s and '40s.

But Roberts also likened the federal-state relationship to a "gun to the head," citing a threat by the secretary of Health and Human Services, Kathleen Sebelius, to cut off all federal Medicaid funds to Arizona if the state withdrew from a children's health program.

"You have to give up your wallet," he said. "You don't have a choice."

Verrilli argued that the Medicaid expansion was not coercive, since 60 percent of the funds would go to optional programs and because states could drop out.

Ginsburg pointed out that while Clement represented 26 states seeking to overturn the law, a dozen states, including New York, filed a friend of the court brief in support of the Medicaid expansion.

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