Justices to hear challenge to Affordable Care Act
As the Supreme Court hears a challenge Tuesday to the Affordable Care Act, the stakes are enormous: insurance coverage for more than 20 million Americans during a disastrous pandemic. Medicaid coverage for more than 15 million with low incomes. About $ 27 billion a year in federal funding for California.
And, arguably, the public standing of the court, particularly its newest justice, Amy Coney Barrett.
The law, signed by President Barack Obama in 2010, was intended to provide coverage to the tens of millions of uninsured and underinsured Americans through federal assistance and regulation.
While subsidizing private insurance purchases through stateadministered marketplaces, the government banned denial of coverage for preexisting medical conditions — diabetes, high blood pressure, even pregnancy — as well as lifetime limits on coverage. Children could remain on their parents’ policies until age 26. Contraceptive coverage for women was required free of charge.
In return, individuals were required to obtain coverage or pay a penalty, a requirement at the heart of initial legal challenges. The Supreme Court voted 54 to uphold the law in 2012 when Chief Justice John Roberts construed the penalty as a tax that Congress had the power to levy. But now the justices are reviewing a new version of the law, passed by a Republican Congress and signed by President Trump in 2017, that eliminated the penalty — and, in the view of opponents, any constitutional basis for the law.
“Congress has deemed the mandate ( to purchase insurance) ‘ essential’ to the ACA,” 18 states, led by Texas, said in written arguments challenging the law. Without the penalty, they argued, the insurance mandate is unconstitutional, and so is the entire Affordable Care Act, which relies on individuals obtaining coverage they might otherwise forgo.
A federal judge in Texas agreed, but the law remains in effect while the Supreme Court reviews it. A ruling is due by June.
“COVID19 has made one thing undeniable: We must safeguard the Affordable Care Act — lives depend on it,” California Attorney General Xavier Becerra said Monday. His office will argue on behalf of 20 states and the District of Columbia in defense of the law, with support from health care advocates, labor unions and much of the medical industry.
If the court overturned much or all of the federal law, states could fill some of the gaps with laws requiring stateregulated insurers to provide coverage regardless of preexisting conditions and follow other provisions of the federal law.
But California, already facing a mounting budget deficit because of COVID19, would have little ability to replace the $ 27 billion a year it now receives in federal funds to subsidize 1.5 million insurance policies and 3.7 million lowincome residents who became eligible for MediCal under the federal law.
The amount equals “all we spend on higher education and corrections combined,” said Anthony Wright, executive director of the consumer advocacy group Health Access California.
The only plausible solution, he said, would be for Congress to pass a new law that would either repeal the insurance purchase mandate or restore a nominal tax penalty, such as $ 1, and then hope that the court would uphold it.
Presidentelect Joe Biden has proposed expanding the law to add a “public option,” a governmentfunded health insurance plan that consumers could choose instead of private coverage. It was included in early drafts of Obama’s health care law but was derailed by conservatives in both parties. Biden has scheduled a speech Tuesday in support of the challenged law.
Although the court has upheld the current law twice, rejecting a challenge to federal subsidies in 2015, its composition has changed with the addition of three appointees of President Trump, who supports the suit to overturn the law. And Barrett, his latest appointee, said in a 2017 law review article that Roberts’ 2012 opinion “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Democrats produced campaign ads claiming Trump had chosen Barrett to torpedo the ACA. But at her Senate confirmation hearing last month, Barrett suggested she might be receptive to the central argument by supporters of the health care law: that the insurance purchase requirement, even if unconstitutional, is“sever able” from the rest of the law, which would remain intact.
When only one section of a larger law is ruled invalid, “the presumption is always in favor of severability,” Barrett told Sen. Lindsey Graham, RS. C., the Senate Judiciary Committee chairman.
“I want every conservative in the nation to listen to what she just said,” Graham responded. “That is the law, folks.”
Another Trump appointee, Justice Brett Kavanaugh, appeared to express a similar view in July when the court struck down part of a federal law banning unsolicited robocalls to cell phones but upheld the rest of the law.
“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote.
Supporters of the Affordable Care Act say the revised version that Congress passed and Trump signed in 2017 clearly did not depend on the survival of the penaltyfree individual insurance mandate.
“They knew what they were doing,” Becerra said at a news conference Monday. “Had they intended to have every aspect of the ACA fall with the zeroingout of the individual mandate,” lawmakers would have made that intention clear, he said.
But legal analysts aren’t taking anything for granted.
“My view is that the challenge is very weak on legal grounds,” said David Studdert, a professor of law and medicine at Stanford. “But forecasting outcomes in an altered court, in this political moment, is like forecasting the weather 12 days from now.”
Another Stanford law and medicine professor, Michelle Mello, said, “I see it as a Hail Mary pass, but one that, if it finds a receiver, would have profound and destructive implications not just for the ACA but for a host of statutes with legal imperfections.”