Supreme Court Signals Willingness to Uphold ACA

November 10, 2020
Allison Inserro

,
Gianna Melillo

Gianna is an assistant editor of The American Journal of Managed Care® (AJMC®). She has been working on AJMC® since 2019 and has a BA in philosophy and journalism & professional writing from The College of New Jersey.

During oral arguments, the justices asked skeptical questions regarding Republican state efforts to get the Affordable Care Act (ACA) overturned.

The Supreme Court heard oral arguments Tuesday in California v Texas, the case brought by Republican attorneys general in 18 states to repeal the Affordable Care Act (ACA, also called Obamacare).

During the arguments conducted via teleconference, Chief Justice John Roberts and conservative Justice Brett Kavanaugh called into question Republican arguments claiming that if one provision of the ACA falls, the entire act must be invalidated and found unconstitutional.

The landmark 2010 law is being defended by California, New York, and other blue states, after the Department of Justice declined to do so earlier this year.

In addition, the Democratic-controlled House of Representatives endorses California’s stance to leave the law intact.

“It’s hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down,” Roberts said. He continued, “We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” while noting that Congress opted to leave the rest of the law intact in 2017. “That seems to be compelling evidence.”

The unexpected death of liberal Justice Ruth Bader Ginsburg in September left room for President Donald Trump to nominate a conservative justice, tilting the court’s ideological balance in favor of conservative views. The post was ultimately filled by Justice Amy Coney Barrett, cementing a 6-3 ideological majority. Barrett has been critical of the Supreme Court’s earlier health care decisions sustaining the law, The Associated Press reports.

The 3 liberal justices on the court will most likely vote to uphold the ACA in its entirety, while Justices Kavanaugh and Roberts seem to be leaning toward upholding the bulk of the ACA. Kavanaugh stated that recent court decisions suggest “the proper remedy would be to sever the mandate and leave the rest of the act in place.”

However, some conservative justices also indicated Republican challengers did have the proper standing to bring the legal challenge. They described instances where an individual may be able to file a suit over a government mandate in the absence of a penalty.

Donald Verrelli, who represented the House, argued that challengers are “asking this court to do what Congress refused to do when it voted down repeal of the ACA in 2017. But their argument is untenable.” He continued, “The health care sector has reshaped itself on reliance on the law. Tens of millions of Americans rely on it for health insurance that they previously could not afford and more rely on the law for its protections and benefits.”

In 2017, Trump eliminated the individual mandate—the heart of the ACA that requires everyone to have health coverage and lays the groundwork for a risk pool that is more balanced between the sick and the healthy and the young and the old. Subsequently, in 2019 the Fifth Circuit of the United States Court of Appeals ruled the mandate unconstitutional.

The filing accuses the ACA of inflicting “classic pocketbook injuries on the states,” in addition to preventing states from enforcing their own laws and policies.

“Congress deliberately designed the ACA and its goal of expanding healthcare coverage around the individual mandate,” the brief reads. “Without the mandate, the guaranteed-issue and community-rating provisions not only malfunction but result in the opposite of what Congress intended.” The filing urges the Supreme Court to affirm the statutory text deeming the individual mandate essential.

In a commentary published by the Center on Budget and Policy Priorities, authors noted that the repeal of ACA is expected to cause 20 million Americans to lose coverage, but with the added coronavirus disease 2019 (COVID-19) crisis, that number will likely increase, especially if the United States enters a recession.

“Forecasts predict that economic hardship will continue through next spring, when the Supreme Court will render its decision. At that time, with unemployment projected to be about 10% and more people relying on Medicaid expansion and the marketplace’s premium assistance, many more people could lose coverage than projected pre-crisis,” authors wrote. Meanwhile, repealing the ACA would cut taxes for the top wealthiest 0.1% of the country by an average of $198,000, an additional report found.

Various organizations weighed in Tuesday before and after the oral arguments were heard.

We are encouraged by the thoughtful questions raised by the Justices in today’s arguments and are confident that the Court will come to the right decision to uphold the law and sustain the ACA’s important consumer protections,” America’s Health Insurance Plans (AHIP) said in a statement after the hearing ended. Invalidating the law would be misguided and wrong and unleash chaos on the entire health care system. For Americans with pre-existing conditions, worrying about their health can be constant. Worrying about whether they will have coverage for their health conditions should not be.

The American College of Physicians (ACP) stressed that the ACA is critical to the functioning of the U.S. health care system and that chaos would result if it is overturned. It, along with other medical groups, filed an amicus brief to the Supreme Court and noted that the country's health care infrastructure is already buckling under the unprecedented strain caused by the COVID-19 pandemic.

In a statement released after the arguments, Texas Attorney General Ken Paxton argued, "It is plainly unlawful for the federal government to order private citizens to purchase subpar insurance that they don’t want. Under Obamacare, Texans faced higher costs, fewer choices, and a power imbalance between the people and their government."

A decision on the case is expected in the spring of 2021 during the first term of President-elect Joe Biden. Throughout the campaign, Democrats have criticized Republicans’ efforts to repeal and replace the ACA during the pandemic.

Biden's health care plan also includes measures to expand the ACA, as he has long been a supporter of a public option for health insurance in the United States.

"These ideologues are once again trying to strip health coverage away from the American people," Biden stated in response to the oral arguments. "This doesn't need to be a partisan issue. It's a human issue. It affects every single American family."

He continued to point out that should the law be overturned, those who suffered complications from COVID-19, such as lung scarring or heart damage, may be considered to have pre-existing conditions, which "can be used as an excuse to jack up premiums or deny coverage all together," Biden said.

"This effort to bypass the will of the American people, the verdict of the courts in the past, and the judgments of Congress, in my view, is simply cruel and needlessly divisive."