Health Reform Law’s Individual Mandate Not Severable, DOJ Says

In a brief filed with the U.S. Supreme Court this week, the Department of Justice argued that if the high court declares the individual mandate in the federal health reform law unconstitutional, the court also must strike down two other provisions that improve access to care, The Hill's "Healthwatch" reports.

The issue stems from a question about the lack of a "severability" clause in the health reform law, which would allow one part of the law to be struck down without jeopardizing the entire law. Various federal courts already have ruled on the severability issue, with differing conclusions (Baker, "Healthwatch," The Hill, 10/20).

In August, a three-judge panel at the 11th U.S. Circuit Court of Appeals ruled in the multistate lawsuit that the law's individual mandate is unconstitutional (California Healthline, 8/15). The judges said the mandate could be struck down without affecting other parts of the reform law.

In its brief, DOJ argued that striking down the individual mandate would invalidate provisions that require insurers to provide coverage for individuals with pre-existing conditions and prevent health plans from charging sicker individuals higher premiums ("Healthwatch," The Hill, 10/20).

The high court is expected to review the case earlier than expected, because the lawsuit's plaintiffs -- 26 states, the National Federation of Independent Business and two individuals -- and the Obama administration have filed briefs with the Supreme Court ahead of the Oct. 28 deadline (California Healthline, 10/20).