The death of Justice Ruth Bader Ginsburg and President Trump's decision to nominate Amy Coney Barrett to fill the vacant seat on the Supreme Court have introduced yet another level of uncertainty to a case that threatens to upend coverage and protections for preexisting conditions for millions of Americans, regardless of the results of the Nov. 3 election.
At the time this article was written, the president and Senate Majority Leader Mitch McConnell were committed to bringing Judge Barrett's nomination to the floor of the Senate for confirmation prior to the election and appeared to have the votes to do so. Judge Barrett's confirmation would create a 6-3 conservative supermajority on the court, with major implications for cases involving women's access to abortion and contraception, laws to prevent discrimination against LGBQTIA persons, access to health care for immigrants, the Deferred Action for Childhood Arrivals (DACA) program, regulation of carbon emissions to mitigate climate change, and laws to reduce injuries and deaths from firearms, among others.
The most immediate impact, though, will be on a court case regarding the Affordable Care Act (ACA), which is scheduled for oral arguments before the Supreme Court on Nov. 10.
The case, brought on behalf of 20 GOP-controlled states with Texas as the lead plaintiff, argues that the entire ACA became unconstitutional in 2017 after Congress repealed its tax penalty for people who do not have federally qualified health insurance. A federal judge in Texas agreed with the plaintiffs, relying on an earlier 5-4 Supreme Court decision written by Chief Justice John Roberts, which upheld the constitutionality of the ACA's individual insurance requirement on the basis that it was a tax within Congress's power to legislate, not an unconstitutional mandate that people buy insurance.
Once the tax was repealed, the mandate to buy insurance became unconstitutional, the judge concluded, and with it, the entire ACA. His decision was affirmed upon appeal by a federal circuit court in a 3-2 decision, with instructions to the judge to issue a more precise decision on the “severability” of the individual mandate from other parts of the law (the question being must the entire law fall if the individual mandate is unconstitutional, as the Texas judge had ruled, or can parts of it be “severed” from the mandate and preserved?). Following the circuit court ruling, California and 20 other states led by Democrats asked the Supreme Court to intervene and take the case, which is now called Texas v. California.
The Supreme Court agreed to hear the case but put off oral arguments until Nov. 10. President Trump's Department of Justice has chosen not to defend the ACA and will instead argue that the entire ACA must go. This is despite the fact that many legal scholars, including conservative lawyers, believe that the plaintiffs' case is weak and should have been rejected by the lower courts.
One can hope that the Supreme Court agrees that the case has no merit, overrules the lower court decisions, and affirms the ACA's constitutionality. ACP has joined with the American Medical Association and other health organizations in an amicus brief to the Supreme Court urging it to uphold the ACA as a matter of law, as well as to consider the terrible consequences for patients if it is overturned.
“Unfortunately, the fate of the health care system now hangs in the balance. During what has now become a national health emergency, amici's members and their patients will bear the burden of a near-certain collapse … the ACA is currently serving as the backbone of the safety-net for the millions of Americans facing sudden unemployment due to the present pandemic,” the brief states. “Amici, as members of the workforce primarily responding to the current crisis, respectfully request that the Court consider the implications of invalidating the ACA in the midst of the current health crisis. Given the enormous consequences of striking down the ACA in its entirety, amici have participated in this case from the start (making standing, merits, and severability arguments). The stakes have only increased ….”
The burden of a near certain collapse during a national health emergency is not hyperbole, but a true statement of what is at risk if the Supreme Court rules against the ACA. Insurers could again deny coverage, charge higher premiums, exclude coverage for needed care, and cap annual and lifetime benefits for the more than 50 million Americans with preexisting conditions, including potentially the more than 7 million Americans who have tested positive for COVID-19.
The 39 states that have taken increased federal dollars to expand Medicaid would lose them, putting up to 20 million poor people at risk of losing coverage unless the states cover the funding gap themselves. Millions more would lose their premium subsidies to buy insurance plans through the ACA marketplaces. The ACA provisions to close the “donut hole” in Medicare Part D benefits would end, resulting in seniors paying more for their prescriptions. Physicians enrolled in innovative alternative payment models created by the ACA's Center on Medicare and Medicaid Innovation could find those programs terminated.
How quickly all this would occur, if it occurs, remains to be seen, because that would be up to the Supreme Court to decide; many thousands of pages of federal regulations would have to be withdrawn and rewritten if the ACA is overturned. While Congress could enact legislation to reinstate much of the ACA in a way that the court would find constitutional, how likely is that in the current polarized political environment, and how quickly could that happen before incalculable harm is done?
One hopes that the Supreme Court finds the wisdom to uphold all or at least most of the ACA. Judge Barrett, when she was a professor of law, wrote that the 5-4 opinion written by Chief Justice Roberts to uphold the health care law “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Although this does not necessarily predict how she would rule in the current case, a 6-3 conservative majority on the court would seem to make it more likely that the law will be overturned, considering that Justice Ginsburg was one of the five justices who voted with the majority to uphold it in the earlier case.
The fate of the entire health care system now hangs in the balance.