Wednesday, March 14, 2012

Health Care Briefs: Amicus Briefs Attempting to Protect Specific Provisions of the Affordable Care Act

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court to spare specific provisions of the Act.  The number and significance of these provisions remind us how vast and encompassing this law is, and how unlikely it is that the Supreme Court will declare it unconstitutional.

The AARP and several other organizations who advocate on behalf of Medicare not surprisingly contend in their brief that certain provisions of the law strengthening Medicare should be insulated from being struck down with the individual mandate.  The provisions they hope to keep afloat include the elimination of the "donut hole" (a deductible) for prescription drugs; access to preventive health services; access to chemotherapy and dialysis; incentives to improve quality of care; provisions that would permit persons receiving long-term care to remain in the community and avoid institutionalization; provisions improving coordination of services; and provisions aimed at preventing neglect and abuse of the elderly.

The amicus brief of the National Indian Health Board, other Indian organizations and tribes argues that the reauthorization of the Indian Health Care Improvement Act and other provisions of the ACA improving medical services to Indians are severable from the individual mandate and should be preserved.

In its brief the Washington & Lee University Law School Black Lung Clinic argues that if the individual mandate is struck down the remainder of the ACA should be upheld in its entirety, particularly Section 1556, the Black Lung Benefits Act, which extends eligibility for federal benefits for several of the clinic's clients.

A brief filed by about 50 Asian-American advocacy organizations maintains that the Affordable Care Act contains a number of provisions that address the "unique health care needs" of Asian-Americans and that will increase access to health care for all Americans.  These provisions include the SHOP Act that extends tax credits to small businesses allowing them to provide health care to owners and employees; Medicaid expansion; tax credits for individuals to purchase health insurance; enhanced coverage for dependents; and elimination of exclusions for preexisting conditions.  The brief also identifies several provisions of the law creating programs specifically addressing the health needs of minority communities including the promotion of culturally and linguistically appropriate care, increasing the diversity of the medical workforce, and enhanced data collection and analysis.

The brief of the American Public Health Association, American Lung Association, and about a dozen similar advocacy groups ask the Court to preserve a number of preventive and public health programs that are addressed to the treatment of chronic diseases in the United States: "Amici public health and prevention organizations write here to emphasize the crucial importance of federal public health and prevention initiatives not only for the well-being of millions of individuals but also for the United States itself."

A number of physician groups including the Society for Internal Medicine point out in their brief (as I have) that the parties who argue that the individual mandate is so integral to the entire Affordable Care Act are in effect making "a lengthy concession that the minimum coverage provision is an 'essential part of a larger regulation of economic activity' and therefore constitutional" under the Necessary and Proper Clause.  Somewhat contradictorily, in their brief these groups ask the Court to uphold as severable from the individual mandate provisions of the law extending access to health care to underserved areas, fostering primary care, and promoting comparative effectiveness research

A number of amicus briefs argue that the Act as a whole is entirely severable from the individual mandate.  This is the position taken in the brief submitted by David R. Riemer and Community Advocates, a Milwaukee activist and group that assists the poor in gaining access to medical care.  They say:
One of the ACA's key goals is to reduce the number of uninsured Americans.  Regardless of the fate of the individual coverage provision, the ACA will move the nation a long way towards achieving this goal. 
Eleven states, the District of Columbia, and the Governor of Washington contend in their amicus brief that the individual mandate is severable from the remainder of the Act in part because some of the reforms have already gone into effect two years before the mandate becomes effective, and in part because many states have taken action in reliance upon the validity of the remainder of the Act.

In a very brief brief, the Missouri Attorney General identifies five specific provisions that have already gone into effect as illustrative of parts of the law that should be preserved even if the individual mandate is struck down: funding for maternal, infant, and early childhood care; the prevention and public health fund; funding for school-based health centers; nutritional labeling for chain restaurants; and break time for nursing mothers.

Michigan Legal Services filed one the most heartfelt briefs on severability.  Its brief contends that the individual mandate is fully severable from the remainder of the Act because the Act as a whole is intended to extend medical care to the poor, and that its remaining portions should therefore stay in effect.  The brief is dedicated to "those who have suffered under the present system – especially to the thousands who have died because they had no insurance and no access to affordable care."

Taken as a whole, these amicus briefs reinforce several points about the Affordable Care Act.  The Affordable Care Act is vast in scope.  Each of these different organizations from many different segments of society finds something valuable in the Act for its particular constitutency.  Many millions of people are already depending upon this law.  The Act seeks to improve the delivery of medical care to every American; its impact will be universal.  

The consequences of declaring this law to be unconstitutional are greater than perhaps any law that the Supreme Court has previously reviewed.  The justices of the Supreme Court will have to think long and hard before they strike down any significant portion of this law.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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