SCOTUS HEALTH CARE UPDATE

Court Mulls Severability Concerns On Third Day Of Healthcare Reform Hearings.

The Supreme Court’s third day of hearings on the Affordable Care Act generated a great deal of coverage, but as has been the case all week, the topic had to compete with other high-profile stories for air time. None of the three networks led their newscasts with the healthcare story last night, though they did devote more than 13 minutes to their coverage of the hearings and the issue of healthcare reform in general. More than 2,000 local television stories were broadcast on the hearings, and nearly every report noted that Wednesday’s arguments focused on whether the entire law can stand if the individual mandate is ruled unconstitutional.

        Much of the reporting yesterday and this morning depicts the court as ideologically driven, and either implies or asserts that political considerations impel the court’s five Republican-appointed justices to oppose the President. The AP  (3/29, Sherman), in an article titled, “Court Appears Split By Ideology Over Health Care,” reports, “A Supreme Court seemingly split over ideology will now wrestle in private about whether to strike down key parts or even all of President Barack Obama’s historic health care law. … Questions at the court this week days showed a strong ideological division between the liberal justices who seem inclined to uphold the law in its entirety and the conservative justices whose skepticism about Congress’ power to force people to buy insurance suggests deep trouble for the insurance requirement, and possibly the entire law.”

        Legal Correspondent Savannah Guthrie, on NBC Nightly News (3/28, story 3, 1:10, Williams) reported, “Even some of the legal arguments that some have looked at as unserious, or legal long-shots, the justices were taking very seriously. So we’re set up for a decision in June in the middle of a presidential election year, and don’t think the justices are not aware of [the timing].”

        Despite the widespread belief that the individual mandate, or even the whole ACA, will be overturned, there was a great deal of coverage that was positive in tone regarding the Administration’s healthcare policy. For instance, ABC World News (3/28, story 4, 2:20, Moran) reported that the ACA has “a lot more” than the individual mandate, including “help people pay for prescription drugs, cover…pre-existing conditions,” and “allow young Americans to stay on their parents’ plan until they are 26.” ABC added, “Today, conservatives argued that if the requirement that everyone has insurance is struck down, all that must go too.”

        The CBS Evening News (3/28, story 6, 2:50, Pelley) reported the ACA “was passed two years ago to help the nearly 50 million uninsured Americans.” CBS added, “When the uninsured end up…in the ER their costs are passed on to paying customers,” and “that means insurance companies end up paying more so they raise rates and fewer people can afford health insurance.”

        Brian Williams, on NBC Nightly News (3/28, story 2, 3:50), said, “President Obama’s healthcare law…might be on life support. Today’s focus was this, how much of it can be salvaged if the court throws out the controversial requirement that all Americans be forced to buy health insurance?” Justice Correspondent Pete Williams added that if the mandate is found unconstitutional then “the justices seem to agree that more parts of the law should go with it, and many of them suggest tossing out most of it.” Justice Scalia: “My approach would say, if you take the heart out of the statute, the statute is gone.” According to Williams, “The best hope for the Obama Administration would be…that the justices would find it so hard to decide what to throw out and what to keep that they simply let the entire law stand, but…that seems a dim prospect.”

        White House Has “No Contingency Plan,” Points To Romney’s Mandate. According to Fox News’ Special Report (3/28, lead story, Bream), “The White House is showing signs it’s preparing a positive spin regardless of the outcome.” Ed Henry reported, “While President Obama boasts about not paying attention to ‘cable chatter,’ his staff could not ignore the storm of criticism directed at his solicitor general, Donald Verrilli, for what many called a weak performance that may have helped put the President’s signature domestic achievement on the brink.” White House deputy press secretary Josh Earnest: “What Mr. Verrilli delivered was a very solid performance before the Supreme Court. That’s a fact.” Henry added, “White House aides insist the President is so certain of victory, he does not have a ‘plan B.'”

        The Hill  (3/29, Parnes) also reports that the White House “has no contingency plans in place in the event the Supreme Court rules the healthcare law is unconstitutional. … If the law is thrown out, there’s ‘no contingency plan in place’…Earnest said. … ‘We’re focused on maximizing the benefits of this law.'” The Hill notes Earnest “said the healthcare law ‘was originally a Republican idea’ and was backed by ‘the former governor of Massachusetts.'”

        Potential Political Repercussions Assessed. The CBS Evening News (3/28, story 2, 3:20, Pelley) reported, “If the Court throws it out, it will be the first time since the New Deal that the court has struck down a major domestic program proposed by the President and passed by the Congress.”

        The Washington Post  (3/29, Gardner), in an article titled, “Supreme Court’s Health-care Ruling Could Deal Dramatic Blow To Obama Presidency,” also reports that the White House is “refusing publicly to consider that the law might be struck down or to discuss contingency plans,” but “other Democrats” are “surmising that a backlash against Republicans could follow a ruling against the law.” However, according to the Post, “Supporters argue that on a substantive level, the results would be devastating” because “it was Obama who, at every turn during the original health-care debate, pressed for a more ambitious package that required Americans to purchase insurance. A nullification would serve as a dramatic rebuke of that decision as well as the judgments Obama and his advisers made about the legality of the law.”

        The Los Angeles Times  (3/29, Memoli, West) reports that the Obama’s campaign has “begun targeting key voter groups that might be most affected by a loss.” The Times adds that “analysts in both parties say that under some scenarios, he could gain politically by losing judicially. … A ruling against the law would mean ‘that one of the most unpopular parts of the Obama record is obliterated without an election,’ said Republican pollster Whit Ayres.”

        Justices Exhibit Ideological Split On States’ Medicaid Expansion Challenge. The Boston Globe  (3/29, Jan) says “several” justices “indicated skepticism that making states expand Medicaid coverage to more low-income individuals under President Obama’s health care law amounts to coercion, as states suing the federal government argued.” Paul Clement, “the lawyer representing 26 states opposing the 2010 law, argued that the Medicaid expansion is unconstitutional because Congress ties federal funding for the program with the condition that states enroll millions of new individuals who did not previously qualify. … Why is a big gift from the government – ‘a boatload of federal money’ — coercive, asked Justice Elena Kagan less than a minute into Clement’s opening argument. ‘It doesn’t sound coercive to me, let me tell you,’ she said.”

        Mandate’s Role In Keeping Premiums Down Detailed. According to Terry Moran, on ABC World News (3/28, story 4, 2:20, Sawyer), “Under the Obama healthcare law, we will all pay for each other,” but the “liberal justices” noted that currently “the uninsured still get care from the emergency room and the rest of us pay.” Justice Ginsburg: “The people who don’t participate in this market are making it much more expensive for the people who do.”