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Will the Supreme Court strike down the most popular part of the health care law?

Supporters of health care reform rally in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama.
AP Photo/Charles Dharapak
supreme court, health care
Supporters of health care reform rally in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama.
AP Photo/Charles Dharapak

(CBS News) After Tuesday's Supreme Court hearings, it looks like the high court could very well strike down one of the least popular and most controversial aspects of President Obama's 2010 health care overhaul -- the requirement for nearly all Americans to purchase health insurance.

On Wednesday morning, the court considered whether striking down the so-called individual mandate would require striking down the entirety of the law -- or at least other parts of it. If the court were to rule that the mandate is unconstitutional, it's possible some of the most popular aspects of the law would go down with it.

A CBS News/ New York Times poll released this week shows that three in 10 Americans want the court to strike down the mandate but to keep the rest of the law. Those people may not be happy to hear that even the Obama administration argued today that if the mandate goes, two other significant parts should go, too -- the rule barring insurance companies from discriminating against those with pre-existing conditions, and the rule barring insurers from charging more because of a person's medical history.

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The rule barring insurers from discriminating against customers with pre-existing conditions (known to policy wonks as "guaranteed issue") is overwhelmingly popular, even among those who oppose the overall law. The CBS News/ NYT poll shows that 85 percent of Americans support the rule, including 76 percent of Republicans.

Still, the administration argues in its brief to the court that the "guaranteed issue" rule, as well as the rule banning insurers from charging customers differently, are critically tied to the mandate.

"Enacted in isolation [those rules] create a spiral of higher costs and reduced coverage because individuals can wait to enroll until they are sick," the brief says. "As Congress found, the minimum coverage provision is thus necessary to achieve Congress's concededly valid objective of reforming the interstate market in health insurance."

It's important to note the court doesn't have to listen to the administration. And indeed, the conservative justices on Wednesday seemed inclined to throw out the whole bill, rather than parse out so-called "good" provisions from "bad" ones, as Justice Antonin Scalia put it.

"My approach would say if you take the heart out of the statute, the statute's gone," Scalia said. "That enables Congress to -- to do what it wants in the usual fashion. And it doesn't inject us into the process of saying, 'this is good, this is bad, this is good, this is bad.'"

The more liberal justices, however, appeared ready to keep at least portions of the bill.

"There are so many things in this Act that are unquestionably okay," Justice Ruth Bader Ginsburg said. "It's a choice between a wrecking operation... or a salvage job. And the more conservative approach would be salvage rather than throwing out everything."

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While Scalia called the individual mandate the "heart" of the 2010 law, attorney H. Bartow Farr argued that the provisions barring discrimination or price variation based on medical history are the "crown jewels" of the law. Appointed by the court to argue in favor of keeping those two provisions, he pointed out there are other elements of the bill to prevent costs from spiraling out of control without a mandate.

It's up for debate whether the individual mandate is really needed to prevent a "spiral of higher costs," but that's not the primary issue at hand: Rather, the question before the court is what Congress intended.

"The court standard for severability is, 'Would Congress have passed the [health care law] without the mandate?" Robert Alt, a senior legal fellow for the conservative Heritage Foundation, told Hotsheet. "Does [the law] operate in the manner consistent with Congress' intent [without it]?"

Deputy Solicitor General Edwin Kneedler argued that clearly there are parts of the law that can work without the mandate -- including provisions already in place, like the rule allowing children up to 26 years old to stay on their parents' health insurance plans.

Arguing for the other side, attorney Paul Clement said, "You can't possibly think that Congress would have passed that hollow shell without the heart of the Act."