Nov. 10, 2020 -- Many of the US Supreme Court Justices seem disinclined to throw out the Affordable Care Act (ACA) — at least that was the takeaway from the questions they asked during oral arguments on whether the law is unconstitutional.
The Justices conducted arguments by telephone in the case, California v. Texas (previously California v. US), which was brought by 18 Republican state officials and two individual plaintiffs. The Trump administration joined the plaintiffs in June, arguing that the entire law should be overturned. The ACA is being defended by Democratic state officials from 16 states and Washington, DC.
The Republican plaintiffs have essentially argued that the ACA cannot stand without the individual mandate requirement — that it is not possible to "sever" it from the rest of the Act. In 2017, Congress set the tax penalty to $0 if an individual did not buy insurance. The mandate to buy insurance was left in place, but there were no longer any consequences. The plaintiffs said that congressional act was equivalent to severing the mandate.
But many Justices appeared to take a dim view of that argument.
"It's a very straightforward case for severability under our precedents," said Justice Brett Kavanaugh. "Meaning that we would excise the mandate and leave the rest of the Act in play. Congress knows how to write an inseverability clause and that is not the language that they chose here," he said.
Justice Elena Kagan also questioned how it would jibe with legal precedent to allow the severing of one part of a law when there was no clear instruction from Congress on the issue. She also raised the concern that it would open the door to all sorts of challenges.
"It would seem a big deal to say that if you can point to injury with respect to one provision and you can concoct some kind of inseverability argument that allows you to challenge anything else in the statute," she said.
"Isn't that something that really cuts against all of our doctrine?" asked Kagan.
"I think it's hard for you to argue that Congress intended the entire Act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act," said Chief Justice John Roberts.
"I think, frankly, that they wanted the Court to do that but that's not our job," he added.
Proof of Harm?
To have the standing to sue, the plaintiffs have to prove they have been harmed by the ACA. Texas Solicitor General Kyle Hawkins said that individuals feel compelled to buy insurance — even without a penalty hanging over their heads.
Justice Stephen Breyer argued that many laws include what he called "precatory" language — that is, they seek to compel citizens to do something. But most don't penalize those who fail to act — just like the ACA currently.
If, as the Texas plaintiffs argued, it's still unconstitutional to make such a request, "I think there will be an awful lot of language in an awful lot of statutes that will suddenly be the subject of Court Constitutional challenge," he said.
Hawkins disagreed. He said the ACA's mandate "is not some suggestion, not some hortatory statement. It is the law of the United States of America today that you have to purchase health insurance and not just any health insurance, but health insurance that the federal government has decided would be best for you."
Hawkins said that if just one additional person signed up for Medicaid, the state of Texas and the other plaintiff states would be harmed. He said people were continuing to enroll in the program because they believed the law required them to get health insurance.
Justice Sonia Sotomayor said that defied common sense. "The problem is that your theory assumes people that people are going to pay a tax and break the law by not buying insurance, but they wouldn't do it when the tax is zero."
What's at Stake
It's unlikely the Justices will issue a decision immediately. They have until the end of the term in June to rule.
Katie Keith, JD, MPH, a principal at Keith Policy Solutions, LLC, outlined the potential outcomes in Health Affairs .
"The most likely scenario is that the Court maintains the status quo," she wrote. They could get there by deciding Texas et al. did not have standing to bring the case. Or they could decide that either the mandate is constitutional, or that it is unconstitutional but can be severed from the rest of the ACA.
The Court could alternatively find that some or all of the law's insurance provisions — such as protections for people with pre-existing conditions — can't be severed from the mandate. Or the Justices could strike down all of the insurance consumer protections, the health insurance marketplaces, premium tax credits, and other provisions, which would force states to come up with themoney to help people buy insurance. And states are unlikely to be able to do so, especially with the pandemic stretching their budgets.
Finally, the Court could find that the mandate can't be separated, which would essentially overturn the law.
If that happens, some 15 million people could lose Medicaid coverage, 11 million who buy on health insurance exchanges could lose coverage, and 2.3 million young adults would no longer be able to stay on parents' policies, according to the Kaiser Family Foundation. Kaiser also estimates that 54 million people under age 65 who have pre-existing conditions would no longer be guaranteed coverage.
The Urban Institute estimates that 21 million people could lose insurance — 15 million through Medicaid and the Children's Health Insurance Program (CHIP) and 7.6 million through private nongroup coverage.
Medical Societies Weigh In
Multiple physicians' groups, patient advocates and hospital organizations have filed briefs with the Court in favor of keeping the law intact.
Twenty patient groups representing millions with pre-existing conditions — including the American Cancer Society, American Diabetes Association, American Heart Association, National Alliance on Mental Illness, National Organization for Rare Disorders, and the Kennedy Forum — filed a court brief in May arguing that the law has expanded access to insurance and improved patient outcomes.
"The coronavirus pandemic has only served to underscore the necessity of meaningful coverage — especially for those who are at high risk of being severely affected by the virus — including countless Americans who have pre-existing, acute or chronic conditions like heart disease, cancer, diabetes, lung diseases and multiple sclerosis," they said, in a statement.
Jacqueline W. Fincher, MD, MACP, president of the American College of Physicians, which joined a court brief in support of the law with 19 other medical organizations, said the law has worked.
"The coverage, protections and benefits provided by the ACA are critical to the well-being of millions of Americans," she said, in a statement.
"If the ACA were to be thrown out at the same time that we face the pandemic, it would cause chaos for physicians and our patients, and for the entire health care system," said Fincher, adding that millions of Americans who have been infected could lose insurance if protections for pre-existing conditions disappeared.
"The ACA has revolutionized access to care for tens of millions of women by helping them obtain meaningful health coverage, ensuring that essential care is covered by insurers, and protecting patients from unfair insurance practices," said Maureen G. Phipps, MD, MPH, CEO of the American College of Obstetricians and Gynecologists (ACOG), in a statement.
Overturning the ACA "would be one of the most singularly disruptive acts to be committed during this public health crisis," she said.
American Psychiatric Association President Jeffrey Geller, MD, MPH also warned of disruptions to care, especially for those with mental health and substance use disorders. "We urge the Supreme Court to preserve the entire Act, including the individual mandate," he said, in a statement.
"In the midst of COVID is no time to let down the millions who we serve as our patients," said Chip Kahn, Federation of American Health Systems president and CEO, in a statement.
"As caregivers, the goal of hospitals for our patients is to see increased access to affordable coverage for all Americans — not new obstacles," he said, adding that the ACA "can accomplish this goal. We hope the Supreme Court will see its way clear to allow it to go forward."
For the Defense
Many legal analysts on social media who listened in to today's hearing agreed that the tenor of the proceedings seemed to lean towards survival of the ACA.
"At this point I would say it is *extremely* likely that the ACA will be upheld, but the mandate struck down and severed out," tweeted Raffi Melkonian, an appellate lawyer in Houston, Texas. "A decision on standing (throwing out the case entirely) is also possible. The chance that the ACA is struck down v. low."
"Both Kavanaugh and Roberts have suggested this morning that they may view the individual mandate as severable from the rest of the law. If those two justices join the court's three liberals in finding that the mandate is severable, that would be five votes to save the ACA," tweeted the analysts at SCOTUS Blog.Sean Marotta, a lawyer with Hogan Lovells' Supreme Court group, agreed. "Oral argument is always an imperfect measure, but the Act's defenders should feel good today," he tweeted.