Anti-abortion protesters pray during the third and final day of legal arguments over the Patient Protection and Affordable Care Act at the Supreme Court in Washington, March 28, 2012. Two years after President Barack Obama signed into law the healthcare overhaul, the Supreme Court is taking up a historic test of whether it is valid under the country’s Constitution. REUTERS/Jonathan Ernst

At the end of a 90-minute session, no clear consensus emerged for the fate of the wide-ranging law should the justices invalidate its key provision – the mandate that most Americans obtain medical insurance by 2014 or face a penalty.

The court is expected to rule by late June on the fate of the law, considered Obama’s signature domestic policy achievement.

On Wednesday, the last of three days of historic arguments, the court appeared split, with Republican-appointed conservatives doubting the law would survive and the Democratic-appointed liberals offering a strong defense for the statute.

If even one of the five conservative Republican appointees joins the four liberal Democratic appointees on the court, the law would be upheld. If the five conservatives stay united, the law would fall.

The law, which constitutes the U.S. healthcare system’s biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.

As with Tuesday’s arguments about the mandate to buy insurance, the fate of the remainder of the law appeared to rest with conservative swing vote Justice Anthony Kennedy as well as conservative Chief Justice John Roberts.

The 26 of the 50 U.S. states challenging the law say the rest of Obama’s healthcare overhaul must go if the court strikes the insurance requirement. Paul Clement, their advocate before the Supreme Court, told the justices that the so-called individual mandate to obtain insurance or face a penalty was “essential to the entire scheme.”

That sentiment was shared by conservative Justice Antonin Scalia, who made clear that he believed if the individual mandate was struck down, the entire law must go. “My approach would be if you take the heart out of the statute, the statute is gone,” he said.

Roberts, leader of the conservative five-member wing, said the court would have difficulty figuring out what Congress really wanted to survive from the law because of horse-trading that went on when lawmakers crafted the legislation. The law was passed when Obama’s fellow Democrats controlled both houses of Congress after a contentious fight with Republicans dead set against it.

Roberts also noted that the law had two purposes in its title, “Patient Protection and Affordable Care Act,” and said it would be tough if not impossible to discern the intent of Congress.

“That’s just an inquiry that you can’t carry out,” he said.

Kennedy voiced concern about the cost risks to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – was invalidated alone.

However, the four liberal justices were skeptical about tossing out the sweeping law that has hundreds of other provisions aimed at stemming soaring healthcare costs and expanding coverage, some of them already in effect.

Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?”

Liberal justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. “Why make Congress redo those?”

The Obama administration’s lawyer, Edwin Kneedler, told the court that if the mandate was struck down, only two key provisions would also have to fall, those related to coverage for people’s pre-existing conditions and limiting costs for those patients with a past medical history.

The justices are expected to meet in private on Friday to discuss the issues heard during the arguments this week and take a preliminary secret vote on how they plan to rule. The justices then will begin drafting their written opinions in the private confines of their chambers.

After a morning session on the severability of the rest of the law from the mandate, the justices in the afternoon began a review over a last issue: whether Congress violated the Constitution by coercing the states to dramatically expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans.

As the court began its last day hearing arguments on the law – six hours spread over three days making it the longest on a single issue in more than 44 years – the crowd of supporters and protesters outside the high court was smaller and more subdued.

The Supreme Court’s decision could have huge ramifications for the November 6 presidential and congressional elections as Obama seeks a second four-year term. If the law is upheld, it would be a major vindication for him but if it falls, it would likely be seen as a major setback.

The Republican candidates vying for their party’s nomination to face Obama in November all oppose the law and could fight even harder to repeal it if the court leaves in place the entire statute.

By James Vicini and Joan Biskupic, Reuters


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