Opinions Split as PPACA Arguments Begin In the Supreme Court

As the U.S. Supreme Court begins three days of oral arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA)(P.L. 111-148) and the Health Care and Education Reconciliation Act of 2010 (HCERA)(P.L. 111-152) collectively and more popularly known as the Affordable Care Act (ACA), opinion is split as to whether the law is beneficial, and whether it is constitutional.  One thing is known is for sure, that it might be three of the most controversial days the Supreme Court has seen, even more than the Bush v. Gore case. 

Public Opinion

 A recent poll of 1,000 adults found that that 58 percent opposed the individual mandate provision requiring individuals to purchase health insurance or pay a penalty when they file their taxes.  This is the provision that opponents of the ACA are arguing is unconstitutional before the Supreme Court. Overall, 51 percent of the respondents did not think their quality of healthcare would change with or without the ACA.  The poll found that only 35 percent of the respondents supported the ACA and 47 percent totally opposed the health reform law.  Public opinion on the constitutionality and the effectiveness of the law is split. The poll was conducted by GfK Roper Public Affairs and Corporate Communications for the Associated Press.  The poll was a telephone survey of 1,000 adults conducted between February 16 and February 20, 2012.

 Legal Opinion

 The American Bar Association (ABA) polled a select group of academics, journalists, and lawyers who regularly follow the Supreme Court and the opinion of 85 percent of these individuals was that the ACA would be upheld. Seventy percent of those polled though thought that if the individual mandate was found to be unconstitutional, the entire Act would not be found unconstitutional and that only that provision would be struck down.  Other provisions of the ACA would be allowed to go into effect. 

 The ABA’s experts were split as to whether the individual mandate would be struck down.  The experts were all in agreement, 100 percent thought that four justices, specifically Breyer, Ginsburg, Kagan and Sotomayor would uphold the individual mandate, and they all thought that Thomas would vote against the mandate.  The experts were split on the rest of the justices with 69 percent thinking Roberts would vote to uphold the mandate, and 53 percent thinking Kennedy would uphold the mandate.  Sixty-two percent of the experts thought Scalia would strike the mandate down and 59 percent of the experts thought Alito would rule against the mandate as well.  All in all,  the experts could not come to a clear decision as to what they think might happen.


 The Supreme Court is preparing for a frenzy of activity that it has not seen since the Bush v. Gore case. In a story appearing on Healthwatch, the Hill’s Health Blog, Sam Baker reports that lawmakers and interest groups plan to stage protests and events outside the court on nearly a non-stop basis.  A group of Republican lawmakers are planning a large rally criticizing the bill after arguments before the court are completed on the second day.  Baker reports that most reporter have not yet found out if they will obtain a seat for the oral arguments as the requests to attend the arguments from reporters, lobbyists and individuals in unprecedented.

 The court has decided to release the audio recordings of the arguments on a daily basis.  This is unprecedented as theses audio recordings are normally released at the end of each week.  Wolters Kluwer’s Law and Health blog will be posting an analysis of the arguments form the audio tapes on each day of the hearings this week as well as summaries of some of the amicus briefs filed with the court. 

Check in frequently for updates on arguments and activities before and around the Court.