San Francisco Chronicle - (Sunday)
New lineup readies for health law case
WASHINGTON — Until six weeks ago, defenders of the Affordable Care Act could take comfort in some simple math. Five Supreme Court justices who had twice preserved the Obamaera health care law remained on the bench and seemed unlikely votes to dismantle it.
But Justice Ruth Bader Ginsburg’s death in mid-September and her replacement by Amy Coney Barrett barely a month later have altered the equation as the court prepares to hear arguments Tuesday in the third major legal challenge in the law’s 10year existence.
Republican attorneys general in 18 states, backed by the Trump administration, are arguing that the whole law should be struck down because of a change made by the Republicancontrolled Congress in 2017 that reduced the penalty for not having health insurance to zero.
A court ruling invalidating the entire law would threaten coverage for more than 23 million people. It would wipe away protections for people with preexisting medical conditions, subsidized insurance premiums that make coverage affordable for millions and an expansion of the Medicaid program that is available to lowincome people in most states.
“No portion of the ACA is severable from the mandate,” Texas Attorney General Ken Paxton told the court in a written filing.
Barrett is one of three appointees of President Trump who will be weighing the latest legal attack on the law popularly known as “Obamacare.” Justices Neil Gorsuch and Brett Kavanaugh are the others.
Of the other justices, Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor have voted to uphold the law. Justices Samuel Alito and Clarence Thomas have voted for striking it all down.
The practical effects of the repeal of the tax penalty have surprised many health care policy experts. They predicted that getting rid of the penalty would lead over time to several million people dropping coverage, mostly healthier enrollees, and as a result, premiums for the law’s subsidized private insurance would rise because remaining customers would tend to be in poorer health.
But that hasn’t happened — at least not yet.
Enrollment in the law’s insurance markets stayed relatively stable at more than 11 million people, even after the effective date of the penalty’s elimination in 2019. According to the nonpartisan Kaiser Family Foundation, enrollment dropped by about 300,000 people from 2018 to 2019. Kaiser estimates 11.4 million people have coverage this year.
An additional 12 million people have coverage through the law’s Medicaid expansion.
Barrett talked at length about the legal doctrine of severability. 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 law alone. That would be consistent with other rulings in which the court excised a problematic provision from a law that was otherwise allowed to remain in force.