The Supreme Court this week will hear another major lawsuit against the Affordable Care Act, this time with a 6-3 conservative majority. The case, backed by 12 GOP-led states, frames the Affordable Care Act as unconstitutional based on the “individual mandate” – a provision that required Americans to buy health insurance or pay a penalty.
The individual mandate’s penalty was zeroed out in 2017, yet the mandate itself remains part of the law. Challengers argue that the penalty is unconstitutional because it raises no revenue and cannot be defined as a tax. They argue that the mandate is an essential provision of the ACA and that because it was invalidated the entire law should be repealed.
As always, President Donald Trump and President-elect Joe Biden stand on opposite sides of the case: the former seeks to overturn the entire law and the latter hopes to expand it during his administration.
The case comes at the worst possible time, amid a contested presidential transition and a pandemic.
When the Supreme Court initially agreed to hear the case in March, it was during a time of high unemployment and low COVID cases. Everything has changed since then, including the political makeup of the Court itself.
If the Supreme Court decides to strike down the entire healthcare law, it would force the Biden Administration to spend considerable time creating a replacement – not to mention the 21 million Americans who could lose their insurance plans overnight.
Repealing the ACA would also kick individuals under the age of 26 off their parents’ healthcare plans and eliminate key protections for individuals with preexisting conditions.
“Invalidating provisions that have expanded access to health insurance coverage…would have a devastating impact on doctors, patients, and the American healthcare system in normal times,” warns the American Medical Association. “However, striking down the ACA at a time when the system is struggling to respond to a pandemic would be a self-inflicted wound that could take decades to heal.”
Instead of a full repeal, the High Court could decide to simply remove the invalidated provision from the law. This would preserve existing health insurance plans and allow the new administration to make improvements to the law. Most major actors in the healthcare industry – including hospitals and insurance companies – hope to see the ACA preserved.
“What President Trump said, and what the congressional leadership said, and virtually everybody said when they enacted this amendment in 2017…is they were repealing the mandate” by removing the penalty, says Donald Verrilli, who represents the House’s defense of the ACA.
“Congress is allowed to learn from experience,” he continued. “You can’t lock the 2017 Congress into the judgement” made in 2010. Verrilli added that the Congressional Budge Office in 2017 determined the ACA would continue to function effectively without the individual mandate.
Chief Justice John Roberts and Justice Brett Kavanaugh have already hinted that they do not want to repeal the entire law, even if the individual mandate is deemed unconstitutional.
“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,” notes Roberts. “I think, frankly, that they wanted the court to do that, but that’s not our job.”
Author’s Note: Healthcare is a complicated issue. President Trump campaigned on a promise to “repeal and replace” Obamacare, but ultimately failed to do so even when Republicans controlled both chambers of Congress. Obamacare has been in place for 10 years now, and many of the people who initially opposed the law have become apathetic. Nearly 66% of Republicans want to maintain the ACA’s protections for people with preexisting conditions.
I personally have a healthcare plan through the Obamacare marketplace, and while it isn’t the best plan I’ve ever had, I would hate to lose it during the pandemic. I would hope that lawmakers understand the necessity of creating an alternative healthcare system before they destroy the only one we have now.