Solicitor General Donald B. Verrilli Jr. makes his case at the Supreme Court. (AP Photo/Dana Verkouteren)

U.S. Supreme Court justices viewed as potential “swing voters” spent the second day of oral arguments on the constitutionality of the Patient Protection and Affordable Care Act of 2010 (PPACA) asking whether Congress really has the authority to regulate inactivity in the health insurance market.

We’ve embedded the PDF of the transcript for Case Number 11-393 here, so that you can read it for yourself and come to your own conclusions about how the day went and whether one side or the other has rounded up the support of 5 or more of the 9 justices.

 

Link to the unofficial Supreme Court transcript of the oral arguments.

Link to the Supreme Court MP3 audio recording of the oral arguments.

 

For up-to-the-minute coverage of the Supreme Court oral arguments on PPACA, visit www.lifehealthpro.com/PPACA


 

Some observers have suggested that Associate Justice Anthony Kennedy may be the likeliest candidate to provide the “fifth vote” that PPACA supporters need to keep the PPACA provision requiring many individuals to own health insurance — and PPACA itself — alive.

Toward the end of oral arguments, for example, Kennedy said to U.S. Solicitor General Donald Verrilli Jr. — the lawyer for the Obama administration — that he finds the implications of the individual mandate “concerning” because “it requires the individual to do an affirmative act.”

“In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger,” Kennedy said. “The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. 

“And here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in the very fundamental way.”

Later, Kennedy asked Paul Clement, a lawyer representing Florida and other states that oppose PPACA, “Was the government’s argument this — and maybe I won’t state it accurately — it is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks? That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?”

Other Kennedy remarks:

He said to Clement of noninsured young adults that, “They are in the market in the sense that they are creating a risk that the market must account for.”

He talked to Michael Carvin, the lawyer representing the National Federation of Independent Business, Nashville, Tenn., and the plaintiffs affiliated with the NFIB, about the government arguing that the health care market is unique.

“In the next case,” Kennedy said, “it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”

The Supreme Court is looking at several issues, but the issue getting the most attention from the general public is the PPACA individual mandate provision.

The provision calls for the government to require most individuals to have health coverage or pay a penalty, to get more young, healthy, relatively low-cost individuals into the pool of insureds and help compensate for the cost of provisions that would require health insurers in all states to sell coverage on a guaranteed issue, mostly community-rated basis.

Provision supporters argue that it is comparable to state laws requiring drives to buy automobile insurance, and that a law is necessary because society and health care providers have little ability to deny care to people who are unlikely to be able to pay for their care.

Opponents ask whether, if Congress has the authority to make consumers buy health coverage from private insurers, it also will have the authority to require individuals to buy GM cars and to buy and eat broccoli.