The passing of Associate Justice Ruth Bader Ginsberg may very well have a profound impact on healthcare in the U.S. It appears likely that the Senate will confirm Amy Coney Barrett shortly. Perhaps it will be before the election, but if not, it will likely be in the early weeks after the election but before the new Senate opens session on January 3.
New justices are sworn in very quickly after they’re confirmed by the Senate. Prospective nominees are typically screened using criteria that expose their thoughts on major policy issues like Affordable Care Act. Their opinion history will also be reviewed. In any event, Barrett is far more likely than RBG to overturn the ACA.
A few weeks ago, the Supreme Court scheduled oral arguments on the future of the Affordable Care Act on November 10. My bet is that they’ll postpone the case (called Texas v. Azar is now called California v. Texas) until Barrett is sworn in.
The case mostly revolves around the ACA’s individual mandate, which is a critical component to the rationale that the Supreme Court used back in 2012 to uphold the ACA. More about that in a bit.
The Court’s Changing Ideology
With RBGs passing and Barrett likely to be installed shortly, the US Supreme Court will have a much different cast of characters than it did when the ACA was originally upheld back in 2012 (by a 5-4 vote). Since then, Justice Gorsuch replaced Scalia and Justice Kavanaugh replaced Kennedy. Both Justices Scalia and Kennedy voted against the ACA- so not much on that score has changed. But, the late Justice Ruth Bader Ginsberg voted with the majority to uphold the ACA in 2012… so her replacement (Barrett) could prove pivotal.
Background on the 2012 Ruling
Chief Justice Roberts voted with the majority that upheld the law, but his majority opinion rested on the fact that the individual mandate to have health insurance also includes a penalty “tax “for those who don’t comply with the mandate. That tax was the “hook” that authorized the Act in that Ruling.
In the 2012 Ruling, Chief Justice Roberts wrote that:
“… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax… because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
Chief Justice Roberts rejected the Administration’s argument that Congress’s authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).
The California v. Texas Case
The California v. Texas case which is scheduled to be heard in November was filed in 2018 by Texas, Arizona and 18 other states. The states claimed that once Congress eliminated the penalty underlying the individual mandate, the mandate must fall away because no revenue is directly produced.
Revenue production, noted Chief Justice Roberts in 2012, is a central component of the constitutional exercises of Congress’ tax power. The Trump administration and several Republican-led states including Arizona argue that the mandate to buy insurance unconstitutional, and lower courts have so far agreed.
Even if the individual mandate is found to be unconstitutional (or moot) by the court, the fate of the remaining provisions of the ACA in part hinges on a legal doctrine called “severability.” Basically, the question is, if one part of the law is found unconstitutional, must the rest of the law also be found unconstitutional or would some portions remain intact?
Arizona and other states say that the individual mandate is so central to the ACA that if the Supreme Court finds it unconstitutional, then the remainder of the 2,000-page ACA “must also fall.”
A key question is whether Barrett will agree with the lower courts. If she does, then the ACA will likely be ruled unconstitutional in its entirety because the individual mandate tax is gone and therefore the Act would likely be considered unconstitutional.
But, it may not turn out like that. For example, Judge Roberts ruled in his 2012 opinion that the Medicaid expansion of the ACA was severable from the rest. Perhaps he will think the same this time but on a different provision? Remember, Justice Roberts has already ruled that Congress’ ability to regulate interstate commerce doesn’t extend to the ACA.
The Impacts of the Demise of the ACA
A new white paper from the ASU College of Health Solutions explores how Arizona has benefitted from the ACA – and what’s at stake in the Supreme Court. For more information and references, view the full report. Here’s a shorter Infographic with the Arizona impact.
A full repeal would have profound consequences for ordinary Americans. In addition to recent estimates that more than 23M people in the US who would lose coverage, repeal would eliminate essential consumer protections, Medicaid Expansion, Health Insurance Marketplaces, and extension of Dependent Coverage to age 26. Before the COVID-19 crisis erupted, coverage losses for Arizonans were estimated to be 297,000; additional coverage losses due to the pandemic have increased this estimate to 363,000.