The Affordable Care Act is on the line, and so is health insurance for millions of Americans as the Supreme Court will review the law Tuesday.
With a 6-3 conservative supermajority, thanks to outgoing President Donald Trump and Senate Republicans’ rapid confirmation of Judge Amy Coney Barrett last month, former President Barack Obama’s signature piece of legislation now hangs in the balance.
Three of the Trump’s appointees — Barrett, Brett Kavanaugh and Neil Gorsuch — are viewed as more likely than their colleagues to support the lame-duck president’s long-stated desire to kill Obamacare.
However, during the worsening coronavirus pandemic, an already rising infection and death rate could climb if the court strikes down the law.
Medicaid for low-income Americans expanded under Obamacare, and it allowed children to remain on their parents’ policies until age 26.
The law also guaranteed coverage for individuals with pre-existing conditions like cancer, diabetes and arthritis.
The judges will hear California v. Texas, which tackles Congress’ 2017 policy that removed the tax penalty from those who didn’t sign up for coverage under the health care law.
The Obama administration instituted the penalty to ensure as many people sign up for health insurance as possible. They reasoned that the more people who signed up, the less expensive coverage would be for all Americans.
Republican state attorneys general filed a lawsuit claiming that the individual mandate is now unconstitutional because there’s no longer a tax penalty.
The court must rule on the constitutionality of the law and whether to strike down all of Obamacare.
Democratic state attorney generals argue that if Congress wanted to end Obamacare, it would have done so. They said Trump and the GOP have no replacement, and, importantly, the law is what Congress always intended.
“Severability is designed to say, well, would Congress still want the statute to stand even with the provision gone?” Barrett said during her confirmation hearings. “It’s kind of like a Jenga game — it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?”
She said that in the current Obamacare case, only one provision is arguably unconstitutional.
“The Affordable Care Act now dangles from a thread,” declared Nicholas Bagley, a law professor at the University of Michigan specializing in health issues.
Health care expert Seth Denson said it’s essential to understand the specifics about the case that the Supreme Court will consider.
The constitutionality of the individual mandate will be determined because, in 2018, Judge Reed O’Connor, a federal judge out of Texas, ruled that the individual mandate, a result of the Tax Cuts & Jobs Act, is no longer constitutional.
Denson noted that the first time Obamacare came before the high court, Chief Justice John Roberts, who wrote the majority opinion, was the swing vote in upholding the law’s mandate, stating the penalty found in the law was not a penalty but a tax.
The 2012 argument said that Obamacare violated the Commerce Clause, that the government could not require someone to buy something.
“However, Justice Roberts upheld the law saying the Congress has the right to tax and the Affordable Care Act did not require someone to buy health insurance, rather it imposed a tax which could be avoided by purchasing health insurance,” Denson said.
A component of the case judges will hear is “severability.”
“In their haste to past the Affordable Care Act in 2009, Democrats failed to include severability language in the draft of the law,” Denson said.
He explained that severability, in short, is a process where if one part of the law is found unconstitutional, it can be severed from the remainder of the law.
This provision isn’t part of the law.
“The 5th Circuit did not rule on whether in the individual mandate can be severed and sent it back to the lower court for further clarification; however, [the Supreme Court] will have to weigh in on this as well,” he offered.
“With regards to preexisting conditions, it’s highly unlikely that they will ever be part of our health care system again,” Denson said. As my father says, ‘the toothpaste is out of the tube,’ meaning that it would be political suicide to allow them into the conversation.”