Lawsuit On Health Overhaul Likely To Go To Trial

The legal fight over President Obama's health care overhaul is now before a federal judge in Florida. Twenty states have challenged the law as unconstitutional. Tuesday, the Justice Department sought to have the lawsuit thrown out. But a conservative judge in Pensacola indicates he's likely to let at least part of the case continue.

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STEVE INSKEEP, host:

Twenty states have now challenged the federal health care overhaul, calling it unconstitutional. This legal fight is now before a federal judge in Pensacola, Florida. Yesterday, the Justice Department sought to have the lawsuit thrown out, but the judge indicated that he is likely to let at least part of the case continue. NPR's Debbie Elliott has our report.

DEBBIE ELLIOTT: Do states have the right to sue over a federal law that requires individuals to buy health insurance? That's what U.S. District Judge Roger Vinson is pondering after oral arguments on the matter in his Pensacola courtroom yesterday.

Lawyers for the states told him the big changes passed by Congress in March are an unprecedented intrusion on the sovereignty of states and the liberty of their citizens. Following the hearing, Utah's Mark Shurtleff was one of three Republican attorneys general who defended their collective action.

Attorney General MARK SHURTLEFF (State Attorney General, Utah): We cannot stand and must stand to protect individuals against an unprecedented attack on their individual liberty, a war on small business, and attorneys general have that responsibility to step up in the place and protect individuals, as well as states and state sovereignty. And that's where the arguments came down today.

ELLIOTT: But legal experts say the states have a high hurdle to overcome. Timothy Jost is a law professor at Washington and Lee University.

Professor TIMOTHY JOST (Law, Washington and Lee University): The state or any litigant has to show that it has actually been injured by the law before it can challenge the law.

ELLIOTT: Deputy Assistant Attorney General Ian Gershengorn argued the case for the federal government. He pointed out the individual insurance mandate doesn't take effect until 2014, so it's not ripe for a challenge yet.�

The National Federation of Independent Business and two individuals have joined the state lawsuit. Karen Harned with NFIB says the group's members are already suffering because of the healthcare law.�

Ms. KAREN HARNED (National Federation of Independent Business): Small business owners are acting now. They are planning now, because they are hearing from their insurers that that coverage they have is not available any longer, that their rates are being increased dramatically as a result of this law, and that they are going to have to divert resources because of the individual mandate from their business to pay for health care whether they want it or not.

ELLIOTT: The Obama administration says the mandate is constitutional because it amounts to the regulation of economic activity under the commerce clause of the constitution.�Law Professor Timothy Jost says the healthcare market is a natural fit for the commerce clause.

Prof. JOST: The decision whether one insures through private insurance or self-insures, the decision as to when one purchases health insurance is an economic decision. Unfortunately, for most of us, the option of not choosing to participate in the healthcare system is not an option. We're going to participate at one point or another.

ELLIOTT: But Judge Vinson seemed skeptical when the Justice Department made the same argument in his Pensacola courtroom yesterday. The judge said he would rule on the government's motion to dismiss by October 14th. But he also laid the groundwork to go forward with the case, scheduling a hearing on its merits for December.�

Debbie Elliott, NPR News.

LINDA WERTHEIMER, host:

In another matter involving the federal court, civil cases could be televised under a plan approved yesterday. The U.S. Judicial Conference, which is made up of 27 federal judges, voted in favor of a pilot project that would allow video recordings. Jurors and witnesses would be kept off camera, and both the prosecution and defense would have to consent to being videotaped. The pilot program would not include the Supreme Court, which already releases audiotapes of its proceedings.

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WERTHEIMER: This is NPR News.

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