Supreme Court justices appear ready to uphold Obamacare

Nov. 10, 2020 Updated 12:37 PM PT

WASHINGTON — Supreme Court justices on Tuesday sounded ready to uphold the Affordable Care Act for the third time and reject the latest challenge from its conservative critics, including President Trump.

Most of the justices gave a skeptical hearing to Texas Republicans and Trump’s lawyers, who insisted the entire law, also known as Obamacare, should be voided because Congress had eliminated the tax penalty for those who did not have insurance.

Several justices said that while this change may have ended the much-disputed insurance “mandate,” removal of the provision did not invalidate the rest of the broad, popular law, including coverage protections for people with preexisting conditions and government subsidies that help tens of millions of low- and moderate-income Americans secure coverage through Medicaid and insurance marketplaces created by the law.

Chief Justice John G. Roberts Jr. — who twice before joined liberal justices to uphold the law — said Congress in 2017 did nothing more than eliminate the tax penalty for those who did not have insurance.

“Congress left the rest of the law intact. That seems to be compelling evidence on the question” of whether the rest of the law should stand, he said. If Congress did not repeal the entire law at that time, why should the Supreme Court do it now, he asked.

“That’s not our job,” Roberts said.

Justice Brett M. Kavanaugh took a similar view, suggesting that even if the insurance requirement is unconstitutional, that should not affect the rest of the law. “It seems very clear the proper remedy is to sever the mandate provision and leave the rest,” he said.

Joined by the three liberal justices, Roberts and Kavanaugh — Trump’s second Supreme Court pick — could form a majority to uphold the law.

That would not only preserve coverage for millions, but allow President-elect Joe Biden to focus on expanding insurance protections, a central plank of his campaign platform.

Speaking Tuesday in Wilmington, Del., Biden reiterated his commitment to begin that work when he takes office in January.

“We are going to fight for your family’s healthcare,” Biden said. “This doesn’t need to be a partisan issue. It’s a human issue.”

Tuesday’s hearing marked the third major challenge to Obamacare to come before the high court as well as the first major test for Justice Amy Coney Barrett, who joined the court last month.

Senate Democrats opposed Barrett — who replaced late liberal icon Justice Ruth Bader Ginsburg — predicting she would cast the key vote to strike down the law. During her confirmation hearing, she suggested she did not see a reason for striking down a broad law because of one flawed provision.

Barrett did not tip her hand during Tuesday’s argument as to how she would rule, though she questioned whether Congress had the constitutional power to enforce the healthcare law if the tax penalty was reduced to zero.

The justices also spent much of Tuesday’s argument questioning whether the plaintiffs from Texas had standing to sue. Usually plaintiffs must show they have suffered an injury or loss to challenge a federal law.

Justice Elena Kagan said it made no sense to say the Texas plaintiffs were hurt when the penalty was removed. “Congress made the law less coercive,” she said. How does that become “an unconstitutional command?”

The court could avoid ruling directly on the law by saying the plaintiffs had no standing.

Some justices may agree, however, that ending the tax penalty had the effect of cutting out the pillar that upheld the entire law, as the challengers maintained.

Justices Clarence Thomas and Samuel A. Alito Jr. have voted twice to strike the law, and they may well do so again. And Justice Neil M. Gorsuch questioned its constitutional basis, as did Barrett.

But in addition to their remarks Tuesday, the chief justice and Kavanaugh both wrote in separate opinions earlier this year that the court should not strike down broad laws because one provision is deemed unconstitutional. Roberts said the court should use “a scalpel rather than a bulldozer” when reviewing laws.

It is “not a game of gotcha,” Kavanaugh wrote, so that one bad clause brings down an entire law.

When he was elected, Trump promised to “repeal and replace” Obamacare, but he did neither, despite Republican control of Congress for his first two years.

GOP lawmakers in 2017 did manage to effectively cancel the tax penalty as part of Trump’s tax-cut bill. This was portrayed as a minor adjustment because it affected only the mandate provision.

But Texas Atty. Gen. Ken Paxton filed a suit contending that revoking the tax penalty meant the entire law must fall. He relied on the notion that the tax penalty was seen as crucial to the high court’s decision upholding the law in 2012.

While most legal experts saw this claim as far-fetched, it won before a conservative federal judge in Fort Worth and a 2-1 panel of the 5th Circuit Court in New Orleans.

California Atty. Gen. Xavier Becerra led the defense of the law and urged the high court to hear an appeal and end the legal threat to the Affordable Care Act. The Trump administration joined the case on the side of Texas.

Healthcare leaders say the COVID-19 pandemic has only highlighted the need for preserving the law.

“The ACA extended health coverage to millions of historically uninsured and vulnerable people in Los Angeles,” said Dr. Christina Ghaly, director of health services for Los Angeles County.

“Whether it was people experiencing homelessness, those with preexisting conditions, or anyone between the age of 18 and 65 who simply could not afford it, the ACA meant coverage for an essential set of health benefits.”

Invalidating the whole law would allow health insurers to resume their long-standing practice before the law’s enactment of turning away people with preexisting medical conditions.

Such a decision would also likely strip health insurance from tens of millions of Americans who have gained insurance since the law’s coverage expansion began in 2014. Gone would be state-based insurance marketplaces that have provided coverage options for Americans who don’t get health benefits at work.

Billions of dollars of federal aid to states to allow them to expand eligibility for Medicaid would also be eliminated, forcing states to pare back their healthcare safety nets.

A host of other protections and benefits in the law would have to be scrapped as well. Young adults under age 26 would no longer be allowed to remain on their parents’ health plans. Seniors enrolled in the Medicare Part D program would be forced to pay more for prescription drugs.

For states such as California, which have aggressively implemented the law, the impact of repealing it could be even more devastating, according to healthcare officials, hobbling a host of efforts to improve the quality of medical care in hospitals, clinics and physicians’ offices that were catalyzed by the law and the coverage expansion it made possible.

Healthcare officials are also concerned that the focus on the fate of the healthcare law before the court may dissuade some Americans from enrolling in health coverage on insurance marketplaces such as Covered California. Open enrollment on Covered California and the federal HealthCare.gov marketplace began this month.

“We don’t want to lose sight of the fact that today, there are millions of Californians who can get subsidized coverage,” said Covered California Director Peter Lee, who stressed that coverage for 2021 should not be in doubt, despite the lawsuit.

When congressional Democrats and the Obama administration were crafting the healthcare law, they and many experts argued that a mandate requiring Americans to get health insurance was critical to ensuring the law and its protections for people with preexisting conditions would function.

But as time has passed, it has become increasingly clear this is not the case, undermining a central argument being made by the Trump administration, Texas and the other Republican-led states seeking to invalidate the law.

Despite the elimination of the penalty for not having insurance, insurance marketplaces have not collapsed. In fact, enrollment has remained steady, as have premiums.

And there is now widespread agreement that the healthcare law’s system of providing generous subsidies to low- and moderate-income consumers to help them buy coverage is enough to bring millions of people into the markets, even without a mandate.

Senior Trump administration officials — including Seema Verma, who oversees Medicare, Medicaid and the marketplaces — and government lawyers have repeatedly hailed the stability of the marketplaces in recent years, noting enrollment and premium numbers.

“Premiums have declined,” Verma said in a March 2019 speech to the Federation of American Hospitals.