Rally to Save the ACA,” Molly Adams

November 10, 2020; Atlantic, New York Times, Washington Post, and Slate

After much handwringing and angst, the Supreme Court seems poised to deliver good news to those whose healthcare depends on the Affordable Care Act (ACA). Of course, these things have been known to change between the time the justices hear a case and the time they deliver their decision, which in this case may not happen until spring of 2021. But all indicators seem to point toward the emergence of an ACA left fairly whole, with the possible exception of the mandate that everyone must purchase healthcare or pay a penalty/tax, which had already been zeroed out in 2017. So, what was the big deal that the US Supreme Court spent two hours listening to arguments on Tuesday morning, and that the nation was so fixated on for weeks and even months prior to this?

The ACA, sometimes known as Obamacare, became the law of the land in 2010. Put most simply (it is a complex law), it’s a law enacted to ensure all Americans have access to affordable insurance. It does this by providing discounts (tax credits) on government-sponsored health insurance plans, and by expanding the Medicaid assistance program to include more people who otherwise could not afford to pay for health care. It also created health insurance exchanges, prevents insurance companies from denying coverage or charging more due to pre-existing conditions, and allows children to remain on their parents’ insurance plans until they are 26. And since its passage in 2010, it has been fought by Republicans who have sought to “repeal and replace” it. Their efforts, thus far, have been unsuccessful.

The current suit, California v. Texas, is the culmination of years of lawsuits wending their way through the lower federal courts and landing on the steps of the Supreme Court. But this is not the ACA’s first dance. It has made two other trips to this very same place. The first came in 2012 in NFIB v. Sebelius. In this important case (also a nail-biter), Chief Justice John Roberts joined the liberals on the Court in a 5–4 decision that stated that the individual mandate was a choice for people, not a command. If Americans did not choose to purchase health insurance, then they paid a penalty to the IRS—something Roberts deemed a tax—and as such, the centerpiece of the law could stand. The Democrats, noting that this “tax” might become problematic, passed legislation reducing it to zero and resolving this problem of an individual mandate. Or so they thought. It still remained in the law.

Attempt number two came just seven months ago. The Supreme Court, by an 8–1 decision rejected a second Republican attempt to sink the ACA. This case, Maine Community Health Options v. United States, was about payments owed to health insurers under the ACA’s “risk corridor” program. While the issue was a bit convoluted, it came down to the principle of honoring one’s obligations. Almost the entire Court agreed, leaving this attempt covered in dust.

And that brings us to the current case. Brought by 18 Republican attorneys general, it turns on the issue of that pesky individual mandate still remaining a part of the law. The legal term “severability” has been bantered about with this case a great deal. If you remove this piece of the law, does the entire law fall? That would be the argument put forward by the 18 attorneys general. They are joined in this, by the government. Opposing them, you have the state of California and the House of Representatives. There were three separate legal arguments that the Republicans will need to win in this case: First, that they (their states) have suffered the sort of injury the gives them the right to sue; second, that zeroing out the tax penalty in 2017 made the individual mandate unconstitutional; and third, that the rest of the ACA cannot stand without the individual mandate.

The other, almost unspoken at court, part of this case is the huge practical impact of striking down this law. If this were to happen, the numbers of uninsured would increase in the US by more than 20 million people—a nearly 70 percent increase—according to new estimates from the Urban Institute. While this may not be part of the arguments, it should be noted the bulk of those losing insurance would be among low-income adults who became eligible for Medicaid under the law, or young people who qualified to stay on their parents insurance until age 26.

But the Court watchers and pundits all seem to be leaning in one direction on this particular case, and it does not bode well for those 18 Republican state attorneys general. It was clear in their questions and statements that both Chief Justice John Roberts and Justice Brett Kavanaugh were not fans of their arguments on severability taking down the entire ACA. Kavanaugh in particular made his position clear to Don Verrilli, who was defending the ACA for the House of Representatives, saying, “I tend to agree with you that it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

Kavanaugh went even further, telling Kyle Hawkins, who was arguing against the ACA on behalf of Texas that Congress wrote the law in such a way that if one piece falls, the whole law falls, that he was wrong.

“Congress knows how to write an inseverability clause,” Kavanaugh told Hawkins, “and that is not the language that they chose here.”

Roberts and Kavanaugh became the dynamic duo in this case, with Roberts picking up on the issue of Congress doing just what it wanted to do, and that it wanted to keep the ACA in place when it zeroed out the penalty on the individual mandate. Repealing a law that Congress chose to keep, Roberts noted, is “not our job.” Roberts and Kavanaugh may become the heroes of healthcare.

And what of the newest Supreme Court Justice, Amy Coney Barrett? It was not clear just where she will finally weigh in on this case. Slate’s Mark Joseph Stern termed her questions “academic,” revealing little about where she stood or what she really thought. But this case was truly not hers to determine. It was clear from the arguments that Roberts and Kavanaugh, especially Kavanaugh, were leading the charge.

This, like the three cases that preceded it, were never strong challenges to the ACA. It was built up and touted as part of a greater plan to bring down Obamacare and replace it, but nothing was ever offered in its place. In many ways, it was an embarrassment for those who argued it. As the Bard said, and as we will hopefully know in the spring when a decision is announced: It was full of sound and fury, signifying nothing.—Carole Levine