PPACA Oral Arguments Transcript and Audio: Day 2

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.