Health Care Mandate At Issue At Supreme Court

Supreme Court justices debated whether it's constitutional for the government to require nearly everyone to have health insurance. President Obama's signature accomplishment could live or die based on the outcome.

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At the Supreme Court today, some of the most important arguments in at least a decade. The justices debated whether it's constitutional for the government to require nearly everyone to have health insurance. President Obama's signature accomplishment could stand or fall based on the outcome.

And as NPR's Ari Shapiro reports, the justices gave the administration's lawyer an especially tough time.

ARI SHAPIRO, BYLINE: Don Verilli had an hour to defend the central tenet of the health care law, that most everyone must have health insurance, whether from their employer, from a government program or purchased on the individual market. He spent most of that time swinging at fastballs from the court's more conservative justices. Justice Anthony Kennedy was among the first to pitch.

JUSTICE ANTHONY KENNEDY: Can you create commerce in order to regulate it?

SHAPIRO: Though Kennedy occasionally joins the court's liberal wing, today he pushed back hard on the government's argument that Congress can require people to buy health insurance. At one point, he suggested that the law fundamentally changes the relationship between the individual and the government. Chief Justice John Roberts offered one of the day's many skeptical analogies.

CHIEF JUSTICE JOHN ROBERTS: So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are.

SHAPIRO: Now for the law to survive, the government will need to win the vote of at least one conservative justice. It was not clear today where that vote might be coming from. Verilli said requiring people to buy health care is different from any other product because everyone will need health care at some point. Justice Antonin Scalia said everyone needs food at some point.

JUSTICE ANTONIN SCALIA: Sooner or later, so you define the market as food, therefore everybody's in the market, therefore you can make people buy broccoli.

SHAPIRO: Justice Samuel Alito picked a different universal experience, death. Can the government require people to buy burial insurance, he asked? Verilli said no.

DONALD VERILLI: One big difference, Justice Alito, is you don't have the costs shifting to other market participants.

JUSTICE SAMUEL ALITO: Sure you do. Because if you don't have money, then the state is going to pay for it or a family member is going to pay for it.

VERILLI: So that's different. That's the difference and it's a significant difference.

SHAPIRO: Justice Ruth Bader Ginsburg came to his aid.

JUSTICE RUTH BADER GINSBURG: I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am enforcing on other people if I don't buy the product sooner rather than later.

SHAPIRO: She and the other three justices appointed by Democrats seemed sympathetic to the law. Their questions were more aggressive when Paul Clement stepped up to argue on behalf of 26 states that the law is unconstitutional. Justice Sonia Sotomayor.

JUSTICE SONIA SOTOMAYOR: Virtually everyone will use health care.

PAUL CLEMENT: At some point, that's right. But all sorts of people will not, say, use health care in the next year, which is the relevant period for the insurance.

SHAPIRO: Chief Justice Roberts and Justice Kennedy pushed back, too, though maybe not as hard as they did against the government. When Clement said this law is forcing people into the health care market against their will, Kennedy replied...

KENNEDY: But they're in the market in the sense that they're creating a risk that the market must account for.

SHAPIRO: The same ideological divide held when another attorney took the last half hour to argue against the law on behalf of businesses that oppose it. A new survey asked former Supreme Court clerks and other top legal insiders whether they think the Supreme Court is likely to uphold or strike down the law. Overall, the group believed there is only a 35 percent chance that the justices will find the individual mandate unconstitutional, but that was before they heard today's arguments.

Ari Shapiro, NPR News, Washington.

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