Health law’s benefit requirements could undermine case for individual mandate

The Obama administration’s Supreme Court arguments hit a snag Tuesday over sections of the healthcare law that set new requirements for insurance plans.

The administration faced tough questions from several justices Tuesday as it argued that the law’s individual mandate is constitutional. Attorneys arguing against the mandate said the policy might be on stronger footing if not for separate provisions of the healthcare law that require plans to cover a broad range of services.

Solicitor General Donald Verrilli Jr., who represented the Obama administration, said no one can predict when they’ll have an accident and end up in the emergency room, so everyone should have to carry insurance because of that risk. He also pointed out that the cost of caring for people who don’t pay their bills is passed on to the government and people with insurance.

Verrilli said the mandate doesn’t force people to participate in commerce because everyone is, or might unexpectedly be, in the market for healthcare services.

But Chief Justice John Roberts questioned that argument. He noted that the mandate will force citizens to buy plans with benefits they might know for sure they’ll never use.

“If I understand the law, the policies that you're requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance abuse treatment,” Roberts said. “It seems to me that you cannot say that everybody is going to need substance abuse treatment or pediatric services, and yet that is part of what you require them to purchase.”

The healthcare law requires most plans to cover a set of “essential health benefits,” which will be defined by each state in accordance with 10 broad categories written into the law itself.

Because of those requirements, Roberts said, the law requires people to buy services they won’t use.

Former Solicitor General Paul Clement, who represents the 26 states challenging the mandate, made the same argument. The coverage requirements make it harder to justify the insurance mandate by noting that anyone could end up at the emergency room at any time, he argued.

“A lot of the insurance that's being covered is for ordinary preventive care, ordinary office visits, and those are the kinds of things that one can predict,” Clement said.

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