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Obamacare hangs in balance in top U.S. court

Several U.S. Supreme Court justices seem receptive to the idea that portions of President Barack Obama's health care law can survive even if the court declares the centrepiece unconstitutional.

Decision on wide-ranging health reforms expected in June

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. (Charles Dharapak/Associated Press)

Several U.S. Supreme Court justices seemed receptive to the idea that portions of President Barack Obama's health care law can survive even if the court declares the centrepiece unconstitutional.

On the third and last day of arguments Wednesday, the justices seemed skeptical of the position taken by Paul Clement, a lawyer for 26 states seeking to have the Patient Protection and Affordable Care Act tossed out in its entirety.

"The law cannot stand," Clement told the justices.

In their questions, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg — and conservative Chief Justice John Roberts and Justice Antonin Scalia — seemed open to the idea that the wide-ranging law contains provisions that can be saved — even if the "individual mandate" for Americans to have health insurance is struck down.

In this courtroom illustration, attorney Paul Clement, right, argues on behalf of respondents challenging the constitutionality of U.S. President Barack Obama's 2010 health-care law. The judges, from left, are Anthony Kennedy, Ruth Bader Ginsburg, Sam Alito and Elena Kagan. Art Lien/Reuters

The "individual mandate" is the part of the law that requires most Americans to buy health insurance or face a penalty.

If the court strikes down that requirement, the Obama administration will be left to come up with alternatives. About 47 million Americans have no health insurance, even with the existence of "Obamacare." That's one American out of every six.

The Obama health care law began requiring insurers cover children regardless of their health in 2010. The requirement wouldn't apply to adults until 2014.

Requirement questioned

On Tuesday, the U.S. Supreme Court's conservative justices questioned a core provision of the reforms, raising doubts about the fate of the requirement that all Americans must buy insurance coverage or face a penalty.

The court's ruling on the constitutionality of the law is expected in June, during the presidential election campaign. It will affect the lives of nearly every American and stands to deepen already wide ideological divisions.

The Obama plan would extend medical insurance to 30 million Americans who go without coverage, either out of choice or an inability to pay the fast-rising premiums in the insurance private marketplace. Obama signed the measure into law two years ago, and it has since been challenged on constitutional grounds by 26 U.S. states and a business organization.

Before the Obama health reforms were signed into law, the United States was the only developed country without a national health care program.

The conservative justices pressed the government's lawyer about the right of Congress to force Americans to buy a product.

"If the government can do that, what else can it" do, asked Justice Scalia, referring to the individual mandate portion of the Patient Protection and Affordable Care Act.

26 states challenge Medicaid expansion

Scalia, as well as Chief Justice Roberts and Justices Samuel Alito and Anthony Kennedy, questioned Solicitor General Donald Verrilli on whether people can be forced to buy things like cars and broccoli if the government can make them buy health insurance.

The justices also spent part of Wednesday considering a challenge by 26 states to the expansion of the Medicaid program for low-income Americans, an important feature in the overall goal of extending health insurance to an additional 30 million people.

As arguments resumed Wednesday morning, a small group of demonstrators gathered outside. Supporters of the law held a morning news conference where speakers talked about the importance of Medicaid.

Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and its citizens.

"Do you not have a heavy burden of justification to show authority under the constitution" for the individual mandate, asked Kennedy, who is often the swing vote on cases that divide the justices along ideological lines.

One conservative needed to keep law

Scalia repeatedly pointed out that the federal government's powers are limited by the constitution, with the rest left to the states and the people.

The Democrat-appointed liberal minority of four justices was expected to vote to uphold the Obama plan. But a ruling in favour of the law would require at least one of the five conservative, Republican-appointed judges to break ranks.

The health care overhaul, which squeaked through Congress when Democrats still controlled both houses, would expand the number of people who have insurance, including young and healthy people who may have fewer need for the system.

That is designed to offset losses to insurance companies, which would now be prevented from denying coverage to people who already have health problems — so-called pre-existing conditions. The plan also expands Medicaid, the federal-state government program that insures low-income and disabled Americans, with most of the additional cost borne by Washington.

The penalty for not acquiring health insurance does not become effective until 2014 and would be collected along with federal income taxes that become due in April 2015. Both sides of the health care issue want a decision in this court session and argued the law does not apply.

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