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Wearing what she calls "war paint," Susan Clark of Santa Monica, CA rings a bell while demonstrating outside U.S. Supreme Court on the third day of oral arguments over the constitutionality of the Patient Protection and Affordable Care Act, March 28, 2012, in Washington, DC. Today is the last of three days the high court set to hear arguments over the act.
Three days of arguments at the U.S. Supreme Court on health care reform wrapped up Wednesday.
This morning, the Court argued about what would remain of the Affordable Care Act if the requirement to obtain health insurance is struck down as unconstitutional. According to Justice Ruth Bader Ginsburg, the choice was between a wrecking operation and a salvage job.
Attorney Paul Clement, arguing for the 26 states that want the entire health care law struck down, urged the high court to give Congress a clean slate and said it wouldn't be a big deal to start over. Given the political war over health care, that got laughs in the courtroom.
Justice Elena Kagan asked whether half a loaf might be better than no loaf at all. Justice Antonin Scalia suggested that Congress start from scratch on health care. He worried about the enormous cost to insurance companies — as much as $700 billion over 10 years if the individual mandate alone is struck down.
The Affordable Care Act lifts lifetime caps on benefits and requires companies to insure even high-risk patients.
The gravity of the court's decision was summed up by Justice Anthony Kennedy, who said that if the Supreme Court lacks the competence to assess the effect of its actions, making a decision is an awesome exercise of judicial power.
At the final session Wednesday afternoon, attorneys debated the provision that would dramatically expand Medicaid. The Affordable Care Act expands the number of poor people covered by Medicaid. The federal government offers to pick up 100 percent of the cost of these new patients for two years and 90 percent in future years. But there’s a stick: if states reject the proposal, they could lose their entire federal Medicaid contribution.
Justice Scalia echoed critics of the health care bill who say states are being forced to accept new Medicaid patients. "Can you conceive of a state saying no?" Scalia asked. "If you can’t, that sounds like coercion."
Justice Kagan disagreed. "Why is a big gift from the federal government a matter of coercion?"
In an emotional closing argument, Solicitor General Donald Verrilli asked the court to think of those with chronic illnesses who will benefit from the health care law.
"This Medicaid expansion, as well as the provisions we discussed yesterday, secure the blessings of liberty," Verrilli said.
"Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years and it made a judgment," Verilli said. "And its judgment is one that I think is in conformity best complex of options to handle this problem. Maybe they were right, maybe they weren’t. But this is something about which the people of the United States can deliberate and vote. And if they think it needs to be changed, they can change it."
Clement, representing the states, had the last word.
"I would respectfully suggest that it’s a very funny conception of liberty," Clement said, "that forces somebody to purchase [an] insurance policy whether they want it or not."
The court is expected to make its decision in June.
This story has been updated.