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FRIDAY, March 30 (HealthDay News) — Now comes the hard part.

Following three days of arguments that ended Wednesday over the
constitutionality of the health-reform legislation passed by Congress in
2010, the nine justices of the U.S. Supreme Court will meet Friday and
begin to decide whether the entire law — or key provisions — can
stand.

While their final decision won’t be announced until June, an initial
vote on the fate of the polarizing legislation will take place Friday.
Then during the weeks to follow, individual votes can change as the
justices read each other’s working drafts of opinions and dissents, the
Associated Press reported.

Equally hard is trying to predict just how the justices — typically
described as four conservatives, four liberals and one “swing” member —
will vote.

Twenty-six states have challenged the constitutionality of the law,
primarily over two provisions — a requirement that most adults have
health insurance by 2014 or face a penalty, and an expansion of Medicaid,
the government-run insurance program for lower-income individuals.

Arguments over those provisions dominated much of this week’s hearing
before the high court.

“It’s very hard to tell what can happen as a result of the oral
arguments. [Justice Samuel] Alito has moved firmly into my ‘no’ vote
column. But I think [Chief Justice John] Roberts and [Justice Anthony]
Kennedy are still possible votes to uphold the statute,” said Renee
Landers, a professor at Suffolk University Law School in Boston, who wrote
a recent commentary on the law in the New England Journal of
Medicine.

“I think we learned from the oral arguments that definitely the four
Democratic appointees — [Justice Ruth Bader] Ginsburg, [Justice Stephen]
Breyer, [Justice Sonia] Sotomayor and [Justice Elena] Kagan — will
definitely vote to uphold every part of the statute,” she said.

But another legal expert said it can be risky to read too much into
what the justices had to say this week.

“Before the arguments started, if you asked me my prediction, I would
have told you that I thought it would be a very close case and I would put
my money on the court upholding the law by a 5-4 decision — and that’s
still what I would say,” said Gregory Magarian, a professor at Washington
University School of Law in St. Louis.

Still, Magarian had this caution: “It’s hard to look at it and say it’s
a slam-dunk that they’re going to uphold the thing.”

Even before this week’s arguments, Stephen Presser, a professor of
legal history at Northwestern University School of Law, predicted that the
Supreme Court would find the health-reform law unconstitutional.

Now, “it’s even more likely than I thought it was before,” Presser
said. “What we’ve got is five justices, ones we suspected — Roberts,
Alito, Scalia, [Clarence] Thomas and Kennedy — all expressing skepticism
and, indeed, all five perhaps hinting that throwing out the whole
Affordable Care Act is the right move in this case,” he added.

“The clear message is that the 10th Amendment [which concerns the
division of powers between the federal and state governments] still has
some teeth,” Presser said.

Allison Orr Larsen, an assistant professor of law at the College of
William Mary in Williamsburg, Va., said she expected the hearings to
be “spirited and lengthy” and she wasn’t disappointed. But, she added,
“What seems like a surprise is that the press should be calling [the
court’s decision] already, which seems a dubious endeavor. It’s hard to
predict Supreme Court opinions based on oral arguments alone.”

The Patient Protection and Affordable Care Act is the most ambitious
government health-care initiative since the Medicare and Medicaid programs
of the 1960s. Key provisions of the 2,409-page law include:

• The so-called — and highly controversial — individual mandate, which
  requires almost all adults to have health insurance by 2014 or pay a
  penalty. Up to 16 million people are projected to join the rolls of the
  insured under the mandate.
• Medicaid expansion. This would increase eligibility to all people
  under age 65 with annual incomes up to 133 percent of the federal poverty
  level — about $14,850 for a single adult and $30,650 for a family of four
  in 2012. Another 16 million people are estimated to gain insurance under
  the expansion. The 26 states challenging the law contend that this
  expansion is a coercive move by the federal government and one that states
  can’t afford.
• State-run insurance exchanges. They will be created to help small
  businesses and individuals buy insurance through a more organized and
  competitive market.

Individual mandate appears to be at risk

One thing became very clear during this week’s legal challenges — the
provision that almost all adult Americans have health insurance or face a
financial penalty may be in jeopardy.

Robert Field, a professor of law in the department of health management
and policy at Drexel University’s School of Public Health, said the
individual mandate seems at greater risk than it did prior to this week’s
arguments before the court.

“One of the interesting aspects of the oral arguments is — this one
anyway — it’s more important what the justices revealed to us than what
the lawyers revealed to the justices,” Field said.

Regarding Justice Kennedy, considered the swing vote, Field said:
“Based on [Tuesday’s arguments], I predict he would rule against it [the
mandate]. Of course, I have to preface that by saying that predictions are
always dangerous.”

He added, however, “I would predict that they will not rule against the
act as a whole. There’s just too much there that is clearly unrelated to
the mandate.”

Landers thinks the mandate itself might survive. “I don’t think all
bets are off yet,” she said. “Reports of its demise are premature.”

Supporters of the individual mandate argue that without the requirement
that people have insurance coverage while they’re healthy, there won’t be
enough money in the risk pool to pay to take care of them when the need
for health care eventually — and inevitably — arises.

No agreement on whether the law can survive without mandate

Landers believes that even if the individual mandate were to fall, the
rest of the law will still stand.

“Both Justice Kennedy and Chief Justice Roberts made this point each a
couple of times during the arguments: there has to be deference to
Congress, and the court is not in the place of second-guessing the
alternatives Congress has chosen,” she said. “The court overturning a
congressional statute is a big deal.”

But Northwestern’s Presser suggested that if the individual mandate is
thrown out, some of the court’s four liberal justices might join with the
conservatives in voting against the whole act.

The Affordable Care Act has been controversial since it was passed by
Congress and signed by President Barack Obama in March 2010. Numerous
polls have found that Americans especially don’t like the individual
mandate. But a recent Harris Interactive/HealthDay poll found that
people are starting to accept certain key provisions of the law — such as
the ban on insurance companies turning away applicants with preexisting
health problems.

On Wednesday, the court debated whether the health-reform law could
function without the individual mandate. Justice Scalia referred to it as
the “heart” of the statute. And if the mandate were ruled
unconstitutional, Justice Ginsburg said the court would be left with a
choice between “a wrecking operation” and “a salvage job,” The New York
Times reported.

But Landers said that the law’s three mechanisms to insure more
Americans — the individual mandate, the expansion of Medicaid, and the
government-run insurance exchanges — don’t depend on one another.

“Would it be better if all three worked in tandem? Yes,” she said.
“Does it totally undermine what Congress is trying to do if one piece of
it falls out? No.”

Drexel’s Field said “the guts of the health reform plan are really the
guaranteed issue provision — that insurers can’t deny coverage for
preexisting conditions — and the community-rating provision saying that
they have to charge rates that are spread out over the community.”

As for the Medicaid expansion, Landers and Magarian believe that it’s
safe, unless the entire law is ruled unconstitutional.

“Well, I don’t want to say that, because a couple of months ago I would
have said the mandate is fairly invulnerable,” Field noted. “But I think
the Medicaid expansion rests on stronger ground. For one thing, it’s been
upheld by every single lower court that’s considered the issue.”

More information

Visit George Washington University School of Law to learn about the
opinion-writing process for the U.S. Supreme Court.