Monday, March 26, 2012 is the first of three consecutive days of oral arguments scheduled by the United States Supreme Court on the Affordable Care Act.
Many webinars and online-access webcasts have appeared on the subjects to be addressed by the Supreme Court. Which provisions of the ACA may reasonably be expected to remain, and how they would function independently of the key provision in controversy -- the individual purchasing mandate -- has received a lot of attention from lawyers in particular. Here, for example, is the American Bar Association's web seminar on demand, and here is the portal to the forthcoming web seminar on demand provided by West Legal Ed Center. In the spirit of full disclosure: The author accepted the ABA's invitation, and West Legal Ed Center's invitation, to speak on their respective panel CLE presentations.
The key provision in controversy is of course the individual purchasing mandate. Compelling arguments have been made on the issue of severability of other ACA provisons from the individual mandate, should that mandate be held unconstitutional. See Abbe R. Gluck and Michael J. Graetz, "The Severability Doctrine" p. A25, col. 2 (New York Times Nat'l ed., Friday, March 23, 2012).
The most concise summary I have read of the likely outcomes, and the sum of the legal precedents that compel those outcomes on the law, is by Lincoln Caplan and Philip M. Boffey, "Sunday Observer / A Moment of Truth for Health Care Reform" p. 12, col. 3 (New York Times Nat'l ed., "SundayReview" Section, Sunday, March 25, 2012).
Another presentation of the legal issues is this one by Noam N. Levey, "In Healthcare Case, Supreme Court Weighs Entwined Provisions" (Los Angeles Times Online, Saturday, March 24, 2012).
An examination of the political, even practical, as distinguished from the legal issues, is offered by Michael Hiltzik in "The Truth About Healthcare Reform" (Los Angeles Times Online, Saturday, March 24, 2012).
In the end, the state of health care in the United States will be very different, whatever the outcome of the case now pending in the Supreme Court. Perhaps other things will be different too.
Time will tell.
The author is Co-Chair of the Health, Life and Disability Insurance Subcommittee of the American Bar Association's Insurance Coverage Litigation Committee.
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