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Can health reform survive without its "heart"?

by Brendon Nafziger, DOTmed News Associate Editor | March 28, 2012
Wrapping up its third day of hearings on the constitutionality of the Affordable Care Act, the U.S. Supreme Court addressed Wednesday the issue of "severability" -- that is, what parts of Obama's landmark health care reform legislation would survive, if any, if the individual mandate, the so-called "heart" of the statute, is overturned.

In general, analysts and reporters on the scene think many justices were reluctant to scrap the nearly 450 provisions of the legislation if the individual mandate -- which requires everyone to buy insurance or face a penalty, and which helps pay for the bill -- falls. However, Tom Goldstein, writing for SCOTUS Blog, observed that "the more conservative the member the more likely they were to believe that more would have to be invalidated."

For instance, Justice Antonin Scalia, one of the most conservative of the nine members on the bench, said, "My approach would be, if you take the heart out of the statute, the statute's gone," according to Bloomberg News.

Many legal analysts have also become more convinced that the individual mandate, addressed yesterday, is truly on the ropes.

"[S]till a train wreck, maybe also a plane wreck for @barackobama," Jeffrey Toobin, CNN's legal analyst, said on Twitter. He also told CNN that there are "at least five votes" to get rid of it, according to a New York Times write-up.

However, Lyle Denniston at SCOTUS Blog, taking a minority position, seemed to think the reluctance of the justices to pore over the 2,700 pages of the law to find out what provisions could survive the loss of the individual mandate might ultimately benefit it. "The net effect may well have shored up support for the individual insurance mandate itself," he wrote.

Interestingly, online betting market Intrade puts the odds of the individual mandate getting scrapped this year at 62 percent, Bloomberg reports. Last week, the odds were 37 percent, the paper said.

Arguments at the court continue this afternoon on provisions in the ACA to expand Medicaid.

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