Pamela A. MacLean
RedwoodAge.com

The Obama Administration has asked the US Supreme Court to stay out of the constitutional fight over the national health care reform law for the time being, to give appeals courts around the country time to sort out the challenges.

Health Czar Nancy Ann DeParle and Health Secretary Kathleen Seblius (right). (HHS)

The reform law faces constitutional attacks in four appellate courts. The challenges center on the mandate for Americans to buy health insurance. Currently, millions of older Americans can't find affordable coverage, although the new law requires companies to offer policies to all, without pricing based on pre-existing conditions.

Papers filed with the high court by the White House ask the justices not to step into the battle too hastily, as they are being asked to do by the state of Virginia. The administration argues federal appeals courts should have time to examine the issue.

Congress enacted the Patient Protection and Affordable Care Act to address the growing crisis in health care services, which account for 17 percent of the nation's gross domestic product, according to the administration.

Millions of people without health insurance use health care services but cannot fully pay, shifting the costs to health care providers in the national market, who in turn pass it on to private insurers, who raise private rates. The uncompensated cost shift totaled $43 billion in 2008, according to the administration.

Older Americans are particularly hard hit by the insurance crisis. Workers age 50-64 tend to have higher rates of insurance than other age groups, but if they lose their jobs they often lose their employer-sponsored health benefits and have tough time finding private coverage. Roughly 8.6 million adults aged 50 to 64 were uninsured in 2009, that was up 1.1 million from a year earlier - a higher percentage increase than other age groups, according to the Alliance for Health Reform. 

Healthcare premiums paid by large employers have doubled in the last decade, but costs to their employees have tripled, according to a 2010 student by human resources firm Hewitt Associates in California.

Despite the increases, research has shown older workers do not cost more than younger ones on the job. Older workers may take longer to recover from injuries but they use fewer sick days than younger colleagues and health costs are lower because they no longer have small children as dependents on health plans, according to Peter Cappelli, director of the Center for Human Resources at the Wharton School of Business in Pennsylvania.

Legal Challenges
Constitutional challenges to mandatory health insurance are pending in four courts of appeal and three of those have given he cases expedited treatment, including the Virginia case, currently in the Fourth US Circuit Court of Appeals.

It is rare for the Supreme Court to take up cases prior to vetting by the courts of appeal. In the past it has reserved such action for emergency situations.

The new law mandates that nearly all Americans purchase health insurance by 2014. The Virginia General Assembly passed a law late last year that its residents do not need to comply with the act. Virginia then asked the federal courts to declare its statute valid. It argues that Congress overstepped its constitutional powers by imposing mandatory insurance purchases.

The district judge agreed and declared the health reform law unconstitutional. That decision was appealed to the Fourth Circuit in Richmond, Va., which plans to hear arguments on the appeal May 10.

But Virginia wants to leap frog the appeals court and go straight to the US Supreme Court to get the issue resolved. The US Supreme Court rarely takes such drastic steps, relying instead on the appeals court around the country to flesh out the legal issues first. 

The Obama Administration argued, that given the Fourth Circuit's plan to hear the appeal in less than 60 days "there is no basis for short-circuiting the normal course of appellate review."

Key Requirement
Congress found that the minimum coverage provision is key to "the viability of the act's requirement that insurers provide coverage and charge premiums without regard to a person's medical condition or history," according to the government's brief.  Without the minimum coverage requirement, many people would wait until they need care to buy insurance, thus undermining the insurance markets.

The administration argued in the lower court and continues to assert that it is individuals who buy health coverage, not the state of Virginia, thus the state has to right to sue.

The Virginia attorney general has no power to enforce the state's law, according to the brief filed on behalf of Kathleen Sebelius, secretary of Health and Human Services.  The state law serves no function other than as an effort to create a right for the state to sue, according to the papers, which point out Virginia exempted colleges and universities from the law, to allow them to require health insurance as a condition of enrollment.

Virginia will have an opportunity to respond to the latest Administration arguments before the US Supreme Court decides whether to take up the issue or wait.