There was one near-universal takeaway from Day Two of oral arguments before the Supreme Court: The requirement that almost all Americans carry insurance, the central point of the Affordable Care Act, may be in trouble. Dire-sounding headlines featuring phrases like “possible trouble,” “key justices skeptical,” and “Supreme Court expresses doubt” made it clear the media grasped the main thrust of Tuesday’s arguments. Government lawyers tried to claim that forcing Americans to buy health coverage was constitutional, and the press recorded the arguments, quoting liberally from the questions and answers of both parties in the dispute.
The Wall Street Journal led with this message of pessimism about the law’s future:
The Supreme Court’s conservative justices sharply challenged the Obama administration’s health-care overhaul Tuesday, raising clearly the prospect that the president’s signature domestic achievement could be struck down.
The AP seemed to agree, reporting in its lede that “sharp questioning by the Supreme Court’s conservative justices cast serious doubt Tuesday on the survival of the individual insurance requirement.” The New York Times noted that the government’s lawyer faced a barrage of skeptical questions from four of the Supreme Court’s more conservative justices, “suggesting that a 5-to-4 decision to strike down the law was a live possibility.” The Washington Post reported the conservative judges “appeared deeply skeptical” that the mandate is constitutional, “endangering the most ambitious domestic program to emerge form Congress in decades.” In its lede, the Los Angeles Times spotlighted the sharp questioning from conservative justices, beginning its story this way:
The Supreme Court’s conservative justices Tuesday laid into the requirement in the Obama administration’s healthcare law that Americans have health insurance. Even before the administration’s top lawyer could get three minutes into his defense of the mandate, some justices accused the government of pushing for excessive authority to require Americans to buy anything.
Once news stories moved beyond the first couple of graphs, they reported on the questions and the answers from Solicitor General Donald Verrilli, who according to some accounts did not do such a hot job of explaining the mandate, why it should go forward, and why the government should force people to buy a product—in this case, health insurance—when it doesn’t do the same for other goods like broccoli and cell phones. “Can the government require you to buy a cell phone?” asked Chief Justice John Roberts.
The ABC News blog noted that Verrilli “seemed at times nervous and hoarse, arguing on behalf of the law.” Reuters got into more detail, seeming to soft-pedal his performance. Reuters reported that Verrilli took a “low-key approach” in his arguments, and that at times the liberal justices, especially Justice Elena Kagan and Justice Ruth Bader Ginsburg, had to help him out. Coming to Verrilli’s aid, Ginsburg “stressed that healthcare was more about timing, that people pay in now and take it out when needed,” Reuters reported. “That’s how insurance works,” Ginsberg added. A close read of the transcript shows that at times Verrilli did muddle his argument.
For me, though, the real takeaway from Day Two was not that the mandate may be in trouble or that Justice Anthony Kennedy may be the swing vote, as he often is in these contentious issues, or that demonstrators from both camps (which some outlets reported on) were out in the streets. It was that there was—at last—some good, clear reporting on what the individual mandate was all about. During the health reform debate, the media did a bad job of explaining the mandate, what it was, why it was necessary, and whom it would affect. It’s no wonder that about half of Americans oppose the law and particularly hate the mandate. Perhaps it was not in the interests of supporters to call much attention to the mandate—or in the interests of opponents, who knew they would eventually challenge it in the courts and use it as the ultimate political weapon in the presidential election.
NPR’s Nina Totenberg zoomed in on the key question of the mandate: Can the government require individual citizens to buy a commercial product they may not want? Totenberg talked to representatives from the National Federation of Independent Business, which is challenging the law, and a former U.S. solicitor general, who argued the health law cases in the lower courts. It was helpful reporting, and listeners could get the gist of the arguments on both sides. Last night on the NewsHour, health correspondent Betty Ann Bowser offered similarly clear reporting on the mandate. And Politico’s Lester Feder penned a piece that made a crucial point: “the fight over the individual mandate has been so loud that people may think it will hit nearly everyone, whether they can afford health insurance or not.” Although it has become what Feder calls “a powerful political symbol of the Affordable Care Act,” in reality the mandate affects only about 25 million people.
Perhaps the Johnny-come-lately reportage is itself symbolic of the way the media do business. They wait for a flashpoint or some drama, before digging deeply into the nitty-gritty of boring policy issues like health insurance. The Supreme Court has now provided the drama—but has this good reporting come too late?
Trudy Lieberman is a longtime contributing editor to the Columbia Journalism Review. She is the lead writer for CJR's Covering the Health Care Fight. She also blogs for Health News Review and the Center for Health Journalism. Follow her on Twitter @Trudy_Lieberman.