You’re forgiven if in the holiday blur you missed that a federal appeals court in New Orleans has once again put the future of the Affordable Care Act in doubt. Or if you missed the news last week that a group of Democratic state attorneys general has asked the Supreme Court to hear the case in this term — which ends in June. That would mean a decision could come right in the middle of the 2020 presidential and congressional campaigns.
It is not at all clear that the high court will take the case at this point (although it is seeking a response from Republican attorneys general, the plaintiffs in the case, by this Friday).
The court does not generally accept cases that come to it before lower-court rulings are complete.
However, writing recently in the New England Journal of Medicine, Nicholas Bagley, a University of Michigan law professor, suggests that the four liberals on the court may opt to roll the dice and vote to take the case because they “can probably count on Chief Justice John Roberts, who has twice turned back more substantial challenges to the law and is unlikely to embrace a lawsuit as weak as this one.”
Still, while it takes only four votes for the court to hear a case, it takes five to hear it on an expedited basis. That would mean the liberal justices would have to entice Roberts or another conservative to hear it this term.
The stakes could not be higher. Republicans, who originally rode their spirited criticism of President Barack Obama’s signature health law to take control of Congress, suffered serious election defeats in 2018. Democrats that year won the day by raising fears that people with chronic medical issues might not be able to get health insurance if Republicans prevailed or that patients who gained Medicaid eligibility through the ACA could lose their Medicaid coverage.
Republicans are unlikely to want another fight about preexisting conditions and other popular provisions of the health law, just weeks before the next election. Recent polling shows that some of the major provisions of the law are highly popular, even among Republicans.
But for Democrats there are pitfalls in pushing for a court decision this term. They risk the court overturning the law or their creating the impression that they are trying to gin up a campaign issue.
What happens next will affect both politics and policy in a major way.
Democrats seem confident they want the case heard now. “Every day that Republicans’ anti-health care lawsuit is allowed to endure is a day that American families will be forced to live in uncertainty and fear,” House Speaker Nancy Pelosi noted in a statement released last week. “Unless the Supreme Court acts, families will continue to face needless disruption in their coverage and premiums, states will be unable to plan for the future and protections for people with pre-existing conditions will remain in peril.”
And Republicans are content with the appeals court decision. “The individual mandate is the centerpiece of Obamacare, and I am glad the Fifth Circuit recognized that it is unlawful,” said Texas Attorney General Ken Paxton, when the 5th Circuit decision came down before Christmas. “Finally being rid of this law will be a victory for all Americans,” Paxton said.
But let’s back up a minute. How can the ACA once again come before the Supreme Court? Didn’t the court uphold it in 2012? And again in 2015?
In 2017, after Republicans had captured the House, Senate and White House, Congress rather famously failed to “repeal and replace” Obama’s signature health law. But Congress did, as part of the year-end tax bill, abolish the ACA’s tax penalty for not having health insurance.
Early in 2018, a group of Republican state attorneys general got an idea, in the words of one of them, “to rev up the base” for that year’s midterm elections. If the 2012 Supreme Court ruling upholding the law found it constitutional because the provision requiring people to have coverage was based on Congress’ ability to impose a tax penalty, then wouldn’t eliminating the penalty render the entire rest of the law unconstitutional?
The Republican argument was dismissed by many legal scholars. But U.S. District Judge Reed O’Connor in Fort Worth, Texas, shocked legal and health policy circles in December 2018 when he ruled that the entire law should be struck down. He said zeroing out the penalty rendered unconstitutional the provisions most closely related to the penalty — those requiring insurers to sell policies to everyone at the same price, even if they had preexisting health conditions.
The Democratic attorneys general appealed (joined by the now Democratic-led House of Representatives).
And the Trump administration changed its position. Originally it argued that eliminating the penalty should invalidate only the preexisting condition provisions. But last March, the Justice Department announced it was advocating for the entire law to be struck down.
The three-judge appeals court panel heard the case in July.
When the panel’s decision was released in December, two judges agreed that, without the penalty, the remaining “individual mandate” was unconstitutional. But rather than explicitly agree or disagree with the lower-court ruling about the fate of the remainder of the enormous health law, the majority opted to send the case back to the lower court “to employ a finer-toothed comb” regarding which parts of the law should be allowed to continue and which would need to go.
That, of course, could take at least another year, possibly more. So, the Democrats defending the law decided to seek Supreme Court review now.
“We’re asking the Supreme Court to swiftly resolve this repeal lawsuit for the sake of saving lives and ending uncertainty in our health care system,” said a statement from California Attorney General Xavier Becerra, who is leading the coalition.
In the meantime, the issue of health care, already top of mind for many voters, could become bigger regardless of what happens. The irony is that the best-case scenario for each party, at least politically, is the one it doesn’t actually want — because the loser in major court cases often gets the biggest political bounce by energizing an angry base. For the Democrats, that would likely occur if the health law were struck down, while the Republicans could benefit if the law were upheld.
The Supreme Court’s decision on whether to take the case this term could come in the next few weeks.
Kaiser Health News is an editorially independent program of the Kaiser Family Foundation. KHN is not affiliated with Kaiser Permanente.