So far, in lawsuits challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA), federal District Courts have divided 3-2 in favor, but the decision in one of the two cases against – brought by Florida and 25 other states – sharpened the stakes as the final resolution moves toward the Supreme Court.

District Courts in the District of Columbia, Virginia and Michigan found the act constitutional while others in Virginia and Florida ruled against it. In each case, the act’s “individual mandate,” requiring all Americans (with a few minor exceptions) to be insured by an employer plan or to purchase their own coverage, was the focus of contention.

In the Florida case, State of Florida et al vs. United State Department of Health and Human Services et al, U.S. District Judge Roger Vinson declared the individual mandate unconstitutional but raised the stakes by voiding the entire act because it lacks a “severability” clause that would keep the rest of the law in effect if one part is ruled unconstitutional.

Responding to the state opposition evident in the Florida case, President Obama announced on February 28 that he will support a bi-partisan Senate bill (S-248) that would allow states to opt out of many of PPACA’s more controversial provisions on January 1, 2014, three years earlier than the act specifies. Because the opt-out date is now the same as the effective date of the individual mandate and other provisions, it allows states to avoid the costs of preparing to implement these parts of the law. States, however, would still have to meet certain health insurance coverage and cost goals such as making sure that their plans cover as many individuals as would PPACA. In addition, Republican Senators and Congress members are sponsoring bills that propose to rescind the act or strike parts or all of its funding.

While the President and Congress pursue possible political compromise, the appeals process continues in the courts. As it now stands, the law is likely to remain in effect until the case reaches the Supreme Court, most likely in 2012, allowing a decision on the eve of that fall’s Presidential and Congressional elections.

The constitutionality of the individual mandate turns on the question of whether or not health insurance is a matter of interstate commerce. Critics say purchasing insurance (or not), like purchasing other goods or services, is an individual’s decision and, therefore, not a matter of interstate commerce. Since it is not a federal matter, only states can establish a mandate. If a state wishes – as Massachusetts has already done – it can require coverage by state residents, but a state can just as well decide not to require coverage. In contrast, proponents of the individual mandate argue that the decision to not purchase health insurance is an active one with significant impact on the nation’s health care market. Because of these impacts, they say, it is a matter of interstate commerce and can be regulated. In his decision, Judge Vinson wrote, “Despite what partisans for or against the individual mandate might suggest, this litigation presents a question with some strong and compelling arguments on both sides.”

Recent polling shows that the public remains strongly divided on the issue. While 50 percent oppose the mandate and only 22 percent favor it, large groups sway back and forth in response to more indirectly posed questions. For instance, 71 percent agree that “for health care to work, it is necessary to include people who are healthy in order to help pay for those who are sick.” On PPACA as a whole, 34 percent favor it, 39 percent oppose it and 27 percent are undecided.

The LHSFNA’s Health Promotion Division maintains a webpage of Health Care Reform Updates that tracks implementation provisions and dates of the PPACA.

[Steve Clark]