GINSBURG’S DEATH COULD JEOPARDIZE HEALTH CARE LAW

Supreme Court to hear oral arguments week after election

The death of Justice Ruth Bader Ginsburg injects fresh uncertainty into the future of the Affordable Care Act, as the Supreme Court prepares to consider anew the constitutionality of the law that has reshaped the United States’ health care system in the past decade.

As the senior member of the court’s liberal bloc, Ginsburg was a reliable vote to uphold the ACA in the past and had been expected to do so when the high court reviews the law a third time in its coming term. The sudden shift in the court’s composition provides the latest lawsuit seeking to get rid of the health care law a greater opportunity, though not a certain victory, while mobilizing Democratic and swing voters focused on the issue in the upcoming elections, according to legal scholars and political analysts.

“Ginsburg’s death is the nightmare scenario for the Affordable Care Act,” said Nicholas Bagley, a University of Michigan law professor who supports the law. “If the suit had a trivial chance of success yesterday, it has a new lease on life.”

Friday night’s announcement that the justice had succumbed to cancer is the latest twist along an uncommonly tortuous path for a major piece of social legislation. The ACA has been in peril in the courts or from President Donald Trump and congressional Republicans becoming President Barack Obama’s main domestic policy achievement. The newest legal challenge comes as polls were showing health care was a dominant issue in the November elections, even before fallout from the coronavirus pandemic removed millions of Americans’ jobs and health insurance and elevated people’s worries about whether they would have coverage if they got sick.

The Supreme Court is scheduled to hear oral arguments on Nov. 10, a week after Election Day, in an ACA case with sharp partisan contours. It is based on a lawsuit that was initiated by a coalition of Republican state attorneys general and is supported by President Trump’s Justice Department. Another coalition of mostly Democratic attorneys general is trying to uphold the law.

The case turns on different legal arguments than those when the Supreme Court upheld the ACA in 2012 and 2015. The current case, California v. Texas, contends that the statute is unconstitutional because a 2017 change in federal tax law eliminated tax penalties for Americans who violate a requirement in the law that most people carry health coverage. The suit contends that if that part of the ACA is invalid, so is the rest.

The court’s eventual decision has stakes for the health care system and Americans’ lives far beyond the insurance requirement, which has been moot since 2019. The most popular aspect of the law protects people with preexisting medical conditions from being frozen out of health insurance or charged higher rates. Democrats used this issue successfully in the 2018 midterm elections to win control of the House, and former vice president Joe Biden, the Democratic presidential nominee, has started running ads on this theme in the most competitive states.

On Saturday, scholars said they regarded the law’s survival chances as dampened with Ginsburg’s death. Assuming the court’s remaining three liberals vote to uphold it, they now would need to find two justices to join them — one more than if the late justice were alive to participate, said Timothy S. Jost, a retired law professor at Washington and Lee University.