Affordable Care Act Hearings Surprise Many

Audrey Erbes

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“The Affordable Care Act has been center stage this past week as the Supreme Court held hearings Monday through Wednesday. Going into the hearings, it was expected that the mandate for all to participate in insurance coverage might be held unconstitutional but the more surprising was the serious consideration of not just turning down the mandate but also throwing out the entire law as raised in comments by the 4 conservative members of the court early in the hearing. Some speculated that the Roberts Court would truly be seen as “activist” if they took this position and were able to add Justice Kennedy (see as the swing vote) to make a majority throwing out the law. Some went so far as to express opinion that Congress should start over and write a new law—as if that would be easy. Some commentators in the media suggest that the conservative judges were behaving more like current Congressmen with their partisanship dominating their comments and that this behavior could seriously undermine the reputation of the Court. I wonder if their ratings could sink as low as that of Congress!

In the end all commentators agree that one can’t be sure of the outcome—of the removal of the mandate with or without touching the balance of the law and whether the expansion of Medicaid might be removed. The conservative view is that you can’t remove just parts without the entire law falling apart and the “moderate” view expressed by Justice Ginsberg is that there’s an either or—the “wrecking” operation or a salvage job—with the salvage job being a conservative approach.

Pharma is worried that the failure of the Court to uphold the law will hit them hard. “If the Supreme Court finds the “individual mandate” provision of the Affordable Care Act unconstitutional, as now seems surprisingly possible, the biopharma industry could be looking at a worst possible outcome situation.” If the Court voids the mandate, this would blow up the rationale on which PhRMA negotiated $100 billion in drug discounts for federal programs—30 million new participants would not materialize but PhRMA companies would still have to foot the $100 billion. If the Court voids the entire law, these companies wouldn’t have to pay the $100 billion but they likely would face other bits and pieces of legislation that would cut away at drug prices to reach the same outcome for participants in the health care system. See full April 2, 2012 article from Medical Marketing and Media at

The States also face potential problems, especially, those like California that proceeded to enact the provisions of the expansion of Medicaid. They did this expecting the Federal government to help pay for this inclusion of millions of new covered lives as the ACA rolled out. Others worry about what will happen to those other parts already in effect like the coverage of children up to 26 under their parents’ policies. And what impact all of this will have on funding of innovative medical products. If you work in the medical sector and would like to learn more about affordable medical devices that can help to improve on your patient care and outcomes, then it may be in your best interest to have a look at
for further information.

Alas, the Court is not expected to decide this case until June of this year so expect lots of discussion between now and then. Interpretations of the remarks made this past week will be spun in different ways. We are told that the judges will exchange many emails and documents as they consider the issues raised and try to influence the votes of each other. Most see Justice Kennedy as the crucial player and one commentator even suggested that all the others need not have shown up for the hearings, since Kennedy’s position will be the deciding one. But either way it goes, the majority decision is likely to be criticized as “activist.”

I suggest you listen in to the March 26th and this week’s BioCentury TV programs in which there were excellent presentations of the differing positions and their impact. The ARRP Bulletin of March 28th lays out the four major questions argued clearly and succinctly at has some blogs in March that raise the varying arguments and dealing with the Court’s decision come June.

Highlights for life science meeting during the coming week include:

  • BioCentury TV Today, See new program Webcast Starting Sunday, April 1, 2012, Continuously available starting at 9:00 a.m. EDT; Topic: “Dissect, Parse & Predict;” Speakers: Elizabeth Milito, Senior Executive Counsel at the National Federation of Independent Businesses; Gregory Rapawy, Partner at Kellogg, Huber; Roger Pilon, Vice President of Legal Affairs at the Cato Institute; Catherine Stetson, Partner at Hogan Lovells
  • Bio2Device Group, Tuesday Morning, April 3, 2012; Topic: “Solving the Challenges of DNA Sequencing for Molecular Diagnostics;” Speaker: Stefan Roever, CEO & Founder, Genia Technologies, Inc
  • Bay Area LifeTech, Wednesday Evening, April 4; Topic: “Stem Cells and Startups;” Speakers: Giles Day, Co-Founder of Distributed Bio, Karen Ring, 5th year biomedical sciences Ph.D. candidate at UCSF; John Bashkin, VP of Business Development at Zymera.
  • UC Berkeley Extension, Bioscience Essentials for Industry Professionals: An Intensive Seminar, April 9-13, 2012
  • Medtech Frontiers, Thursday Evening, April 5, 2012; Topic: “Seeing Structure and Function with Optical Coherence Tomography;” Speaker: David Huang, Weeks Professor of Ophthalmic Research at the Casey Eye Institute, Oregon Health & Science University

See details for this coming week’s meetings in the list of meetings with all details through June, 2012. You can also download this .pdf list from my blog at

Have a great week and enjoy your holiday break!


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