Houston Chronicle

ACA on line at court, but is it likely to fall?

- By Jessica Gresko and Mark Sherman

WASHINGTON — To hear Democrats tell it, a Supreme Court with President Donald Trump’s nominee Amy Coney Barrett could quickly get rid of the law that gives more than 20 million Americans health insurance coverage.

But that’s not the inevitable outcome of a challenge the court will hear Nov. 10, just oneweek after the election.

The Trump administra­tion is asking the high court to throwout the Obama-era health care law, and if she is confirmed quickly, Barrett could be on the Supreme Court when the court hears the case.

But even if the justices agree that the law’s mandate to buy health insurance is unconstitu­tional because Congress repealed the penalties for not complying, they could still leave the rest of the lawalone. Thatwould be consistent with other rulings in which the court excised a problemati­c provision from a law that was otherwise allowed to remain in force.

Democratic lawmakers, however, sounded alarm bells Monday, the start of four days of hearings before the Senate Judiciary Committee for Barrett.

The party’s vice presidenti­al nominee, KamalaHarr­is, who sits on the committee, said Republican­s are “trying to get a justice onto the court in time to ensure they can strip away the protection­s of the Affordable Care Act.”

“If they succeed, it will result in millions of people losing access to health care at the worst possible time: in the middle of a pandemic,” the California senator said.

Sen. Dianne Feinstein, California’s other senator and the committee’s senior Democrat, said, “Health care coverage for millions of Americans is at stake with this nomination.” And Sen. Sheldon Whitehouse of Rhode Island called Barrett’s nomination a “judicial torpedo aimed” at Affordable Care Act protection­s, including for pre-existing health conditions. Other Democrats on the panel made similar points.

Democrats also repeatedly brought up words Barrett wrote in 2017, when she was a law professor, criticizin­g Chief Justice John Roberts’ 2012 opinion saving the Affordable Care Act. Barrett wrote that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

After that 5-4 ruling, which split the court along ideologica­l lines, the justices rejected a secondmajo­r challenge to the health care law by a vote of 6-3 in 2015.

The case before the court this year stems from Congress’ decision in 2017 to eliminate the law’s unpopular fines for not having health insurance. Despite repealing the fines, lawmakers left in place the law’s requiremen­t that virtually all Americans have coverage. Texas and other conservati­ve-led states argue that the change makes the requiremen­t unconstitu­tional and dooms the rest of the law because the mandate was central to it.

But the court could simply “sever” the mandate fromthe law and leave the rest of the law alone. Many observers see that as a likely outcome and note the upheaval that would result across the American health care system if the law were to be struck down in its entirety.

Before the Supreme Court’s term began in October, Paul Clement, who argued in the 2012 Affordable Care Act case, said he wasn’t sure that the addition of a new justice would change the outcome of the case. He suggested that it is unlikely that the whole statute will fall.

“I think the challenger­s have a very uphill battle” in arguing that the ACA should be struck down in its entirety, he said during a virtual event organized by Georgetown’s law school.

Another participan­t in that event, Roman Martinez, agreed. He said he thought it could be a case that surprises some people in that the justices might be able to resolve it in a broad agreement, rather than along partisan lines.

The case could also be rendered virtually meaningles­s if a new Congress were to restore a modest penalty for not buying health insurance, though that seems unlikely to happen.

One other key observer of the case suggested the Affordable Care Actwould likely stand. Earlier this year, Virginia’s William & Mary law school held a mock argument in the case. While the individual votes were not made public, no one on the eight-person panel — which included judges, lawprofess­ors and a journalist — voted to strike down the entire law.

Among those playing the role of justice: Amy Coney Barrett.

“I think the (Affordable Care Act’s) challenger­s have a very uphill battle.” Paul Clement, who argued in the 2012 Affordable Care Act case

 ?? Jose Luis Magana / Associated Press ?? From left, Sen. Richard Blumenthal, D-Conn., Sen. Chris Coons, D-Del., Sen. Amy Klobuchar, D-Minn., and Sen. Mazie Hirono, D-Hawaii, hold photograph­s of people who where saved due the Affordable Care Act during a news conference Monday.
Jose Luis Magana / Associated Press From left, Sen. Richard Blumenthal, D-Conn., Sen. Chris Coons, D-Del., Sen. Amy Klobuchar, D-Minn., and Sen. Mazie Hirono, D-Hawaii, hold photograph­s of people who where saved due the Affordable Care Act during a news conference Monday.

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