WASHINGTON (CN) — One week after Election Day, the sweeping health care law forged by President Barack Obama will endure its seventh test at the Supreme Court, this time with a new 6-3 conservative majority.
The court consolidated two cases, California v. Texas and Texas v. California, to weigh whether the individual mandate under the Patient Protection Affordable Care Act became unconstitutional once the tax cuts Republicans passed in 2017 eliminated the penalty that the law imposed on those who go uninsured. Even if the court does strike down the mandate this time, however, the fate of the law hangs on whether the justices determine that the mandate can be severed in a way that keeps the rest of the Affordable Care Act in place.
The Fifth Circuit was silent on this point when it affirmed 2-1 in December that the mandate was unconstitutional.
In the seven months since the Supreme Court took up the dispute, much has changed in both the court and the nation’s landscape, with the death of the iconic liberal Justice Ruth Bader Ginsburg, the confirmation this month of her conservative replacement, Justice Amy Coney Barrett, and the unrelenting spread of a virus pandemic, to name a few.
That Covid-19 has exposed vulnerabilities for President Donald Trump seeking reelection this Tuesday is undisputed. For the parties arguing over the federal health care law in two weeks, meanwhile, they do so at a time when health care and preexisting conditions are now at the forefront of the national dialogue.
Organizations like the Economic Policy Institute estimate that an outright repeal of the Affordable Care Act could cause upward of 20 million people to lose their health insurance. Apart from what that means for personal health outcomes, the group projects that fewer people with insurance will lead to less visits to primary care physicians and other health care facilities, hurting providers’ bottom lines while exacerbating the public health crisis.
Howard Forman, professor of radiology and public health at Yale University, echoed these concerns in an interview.
“It would have enormous and potentially catastrophic ripple effects,” Forman said Friday of the possibility that the full act could be repealed.
Even accounting for states still counting on federal cost sharing to continue to cover vulnerable populations, like those on Medicaid, Forman said
states might also find themselves “substantially” short on funds.
“Children could be dropped from parental policies, [though] this would be unlikely to happen immediately. Individuals with preexisting conditions and those who cannot afford insurance would find themselves at great risk,” he said. “While it is possible that immediate executive orders could fill in some small gaps, there would be an urgent need for immediate legislation.”
Four years into the Trump administration, however, Republicans have still yet to pass a competing health care law.
“So it is unlikely that they would vote for a stop-gap bill that would substantially replace it,” Forman said.
Justice Barrett’s questions during arguments next Tuesday are hotly anticipated after she wrote critically about the health care law in a 2017 essay for Notre Dame before Trump made her a judge on the Seventh Circuit. The mother of seven comes to the nation’s high court after just three years on the bench and 15 years in academia, much of which was spent at Notre Dame, her alma mater.
Whether Barrett will consider severability as an alternative to erasing ACA altogether is unclear. As her confirmation made clear, her legal career is bereft of opinions or rulings involving the rarely invoked doctrine. The justice has also never tried a case.
Reacting to the last ruling on the Affordable Care Act in 2017, Barrett was critical of what she called the Supreme Court’s willingness to “creatively interpret” what she deemed “statutory textualism to which most originalists subscribe.”
Barrett assured lawmakers this month during her confirmation hearing: “I am not here on a mission to destroy the Affordable Care Act.”
“I’m just here to apply the law and adhere to the rule of law.”
The Fifth Circuit ruled the mandate “injured” those who were required to buy insurance they did not want, while also unfairly upping what states must spend on compliance costs for health insurance reporting requirements built into the federal law.