Moot court previews legal debate over healthcare reform

Two weeks before the U.S. Supreme Court takes up a case that challenges the national health reform law, prominent lawyers staged a moot court in Los Angeles before a nine-member panel that included former Gov. Gray Davis and former state Supreme Court Justice Carlos Moreno.

In a lively and heated discussion in front of dozens of law students, attorneys and community members, two well-known litigators previewed one of the key issues before the Supreme Court: whether the federal government can require individuals to purchase insurance or pay a penalty.

One one side, Theodore J. Boutrous, a partner at Gibson, Dunn & Crutcher, argued that the so-called individual mandate goes far beyond the federal powers in the Constitution.

“The individual mandate is an unprecedented and unconstitutional expansion of federal power,” he said. “For the first time in American history, the federal government is claiming the power to compel private citizens to engage in commerce by spending their own money for goods and services they do not want.”

Former Stanford Law School Dean Kathleen M. Sullivan countered that the requirement is essential to keep costs under control, given that the Affordable Care Act prohibits insurance companies from denying coverage or charging higher rates for people with preexisting conditions.

“Only if you ensure that people take health insurance before they get sick, before they are on their way to the hospital in the ambulance … unless you have that mandatory minimum coverage, the other two provisions won’t work,” said Sullivan, a partner at Quinn Emanuel Urquhart & Sullivan.

During the 11/2 hours of arguments, the would-be justices fired off hard-hitting questions to both attorneys.

The mock case was designed to “peek behind the curtain” at the case and highlight some of the likely arguments, said Robert K. Ross, president of the California Endowment, which sponsored the event along with public radio station KPCC-FM (89.3) and several California law schools.

“This is probably the most important and pivotal case in health law in the last 50 years,” said Ross, whose organization filed a brief in support of the law. “We tried our best to re-create the context and the setting under which the case would be heard before the Supreme Court.”

The tone of Tuesday’s moot court at the California Endowment’s Los Angeles office, however, could be much different than that of the conservative Supreme Court.

The arguments in Washington will begin March 26 and last nearly six hours over three days in what is believed to be the most time dedicated to one case since the 1960s. The ruling, expected in June, could have far-reaching implications for healthcare, the insurance industry, state and federal budgets and even the presidential election.

“I can’t remember a more anticipated court decision, at least … not in the healthcare world,” said Walter Zelman, a professor of health policy at Cal State Los Angeles.

In California, state healthcare officials and counties are already moving forward full-steam with the implementation, setting up healthcare exchanges where people will be able to buy insurance and expanding coverage to the poor and to those with preexisting conditions.

“California is ahead of the curve,” Zelman said. “But if there is no health reform, and there is no money for health reform, then how does the health exchange come up with the money to subsidize all the people?”

If the Supreme Court upholds all or part of the law, California will be one of the states in the best position when reforms take effect in 2014, experts said. But if the law is overturned, the state will have tough decisions to make.

“There would be a debate in California whether to go ahead,” said Larry Levitt, senior vice president at the Kaiser Family Foundation. “In some ways California has taken a risk by moving ahead quickly [before] we are all sure what could happen.”

Levitt said that moving forward could present fiscal challenges for the cash-strapped state, but state policymakers and the counties may do just that. “California has truly been committed to changing the insurance market and getting more people covered,” he said.

Paul Mora, 25, a student at USC Law School, said he went to the moot court to learn more about the case. “It’s a good opportunity to get the arguments on both sides, condensed in a compelling and understandable way,” Mora said.

Robert Garcia, executive director of community organization at the City Project, said the moot court educated both students and lawyers at a point when the health reform law was being debated on the campaign trail and soon will be in the Supreme Court. “It comes at a great time,” he said. “It’s on everybody’s mind.”

anna.gorman@latimes.com