Nov. 11, 2020 -- Now that a Supreme Court’s hearing on a new lawsuit seeking to kill the Affordable Care Act is over, what’s next for the law?
Court watchers say that pointed questions and comments about the suit from Chief Justice John Roberts and Justice Brett Kavanaugh suggest the court seems likely to issue a narrow ruling in the case.
A ruling is not expected until June.
“Based on what we heard, there’s reason to be cautiously optimistic that the ACA will ultimately survive,” says MaryBeth Musumeci, JD, a health policy expert and associate director of the Kaiser Family Foundation’s Program on Medicaid and the Uninsured. “That’s primarily because we heard from Roberts and Kavanaugh that they are viewing this very narrowly.”
Tom Miller, JD, a health policy researcher with the American Enterprise Institute and an attorney, agreed. He goes so far as call to legal arguments from attorneys and President Donald Trump to overturn the Affordable Care Act “a stretch” that won’t likely be successful.
“They were trying to throw their life raft in the ocean,” Miller says. “We could get a sacrificial excision of the individual mandate, but the best betting is that the court will rule 5-4, saying the individual mandate is not worth keeping alive, but they won’t invalidate the entire law.”
Katie Keith, JD, a health policy professor at the Georgetown University Center on Health Insurance Reforms, puts it this way: “We heard pretty forceful comments from Roberts and Kavanaugh, so I would be hard-pressed to think the court would strike down the entire law.
“Regardless of what happens with the individual mandate, the rest of the law seems to be in good shape. So I think it takes out some uncertainty about what happens next.”
The case, brought by the Trump administration and 18 Republican-led states, hinges on a single issue: Whether the GOP-led Congress’s 2017 vote to scrap the Affordable Care Act’s tax on uninsured Americans should overturn the whole law.
In 2017, the GOP-controlled Congress voted to zero out the penalties of the law’s individual mandate, which required everyone to buy health insurance. But it left the rest of the law, passed in 2010, unchanged.
At issue is a complex legal concept known as “severability” -- that is, whether a specific provision can be “severed” from a larger law, without overturning the entire thing.
In two recent rulings, Miller notes, the Supreme Court has tended to narrowly focus on “severable” provisions without overturning entire laws, which the court regards primarily as the role of Congress.
So, what is the Supreme Court likely to do with this case? Health policy experts and legal scholars -- including Keith, Miller, and Musumeci -- suggest four likely scenarios:
No. 1: Case is dismissed. The court could simply reject the suit, ruling that the plaintiffs have no standing to sue, preserving the status quo. “They could say, ‘Get out of court you’re not injured, so you have no reason to be here suing in the first place’ -- essentially saying this lawsuit should never have been allowed to move forward in the first place,” Keith says.
No. 2: Kill the individual mandate but keep the Affordable Care Act. The justices could rule the individual mandate is unconstitutional, but it doesn’t mean the rest of Obamacare should be struck down.
No. 3: Kill the mandate and tweak some parts of Obamacare. The court could also decide the individual mandate is unconstitutional and that some, but not all, parts of the law that it is designed to fund -- such as protections for people with preexisting conditions -- might also be in question. But experts say they don’t expect the justices to go this way.
“You could, in theory, have an outcome where the individual mandate and the preexisting conditions fall and the rest of the law survives,” Musumeci says. “But Roberts and Kavanaugh clearly said they don’t think the 2017 Congress intended to get rid of the preexisting conditions protections. So this tells me they are going to look at the issue in the most narrow way.”
Keith agreed: “From the hearing, that possibility seems a lot less likely than it even was before. I was a lot more concerned about that possibility before the oral arguments.”
No. 4: Overturn all of Obamacare. It’s also possible the court will rule the individual mandate is unconstitutional and therefore the entire Affordable Care Act should be scrapped. But Keith, echoing other experts, says this option is “at the far end of the spectrum” and very unlikely, based on the comments of Roberts, Kavanaugh, and the other justices.
‘That’s Not Our Job’
At Tuesday’s hearing, Roberts and Kavanaugh questioned the merits of the case, with other justices following up with similar queries of their own for the Texas and U.S. attorneys.
Roberts argued that Trump and Republicans could have acted, without the Supreme Court, to overturn the Affordable Care Act, but have failed to do so in 2017 or at any other time before or since.
“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,” he told the attorneys representing the GOP effort.
“I think, frankly, that they wanted the court to do that, but that's not our job.”
Kavanaugh, one of three Trump nominees on the bench, went so far as to suggest the argument made by defenders of the law -- including the Democratic-led House of Representatives -- may be correct in arguing the Affordable Care Act should not be invalidated simply because Congress removed the penalty provisions of a single part of it.
Miller says this is not a new argument for Roberts, but he suggests Kavanaugh’s questions on Tuesday suggest the two are of like minds -- predicting “there’s no way” the Supreme Court will strike down the Affordable Care Act, based on the constitutionality of the individual mandate.
“Roberts is where Roberts is, that’s not surprising at all,” he says. “What Roberts was saying is very much in line with where Roberts is on this. The real issue outstanding is now, it looks like Kavanaugh, as most of us would have predicted, is also going to view severability very narrowly, so you’ve got five justices who are not likely to go beyond knocking out the individual mandate.”
Roberts and other justices also called into question the attorneys’ claims that Americans and states have suffered the “legal injury” necessary to invalidate the law. Simply put, the question is whether the individual mandate caused anyone financial harm -- a claim several of the justices seemed disinclined to believe.
In the unlikely event the Supreme Court decides to overturn the entire law, the impacts and implications would be widespread, dramatic, and significant.
“The entire health care system has incorporated the ACA,” says Gerard Anderson, PhD, a health policy expert at Johns Hopkins University Bloomberg School of Public Health. “Taking it out of the health care system would be as difficult as putting Humpty Dumpty together again.
“Everything from how people get insurance, to how preventive services are paid, to how drugs are financed, and hospitals and physicians are paid are influenced by the ACA.”