The Supreme Court, with either 8 or 9 members, has scheduled oral arguments on the constitutionality of the Affordable Care Act for November 10, 2020. This is a Supreme Court case that could strike down the entire ACA. May 13 was the deadline to file amici briefs on the case of the State of California, ET AL. v. the State of Texas, ET AL. In June, the Trump Administration urged the Court to side with Texas and told the Court, “the entire ACA must fall.”
Dozens of briefs were filed led by a collection of sometimes unusual alliances that sought to uphold the ACA. The Supreme Court will decide the fate of the health insurance law that is providing coverage to more than 20 million people; has made the requirement that insurance policies cannot deny you insurance if you have a pre-existing health condition; created an “essential benefits” package of coverages that policies must include; and a popular requirement that policies allow you to keep your adult child on your policy until the age of 25.
Last year, as described in the Children’s Monitor, the U.S. Fifth Circuit of Appeals agreed with Judge Reed O’Connor of the Federal District Court in Fort Worth when he ruled that “the keystone” of the law was the individual mandate and, when Congress eliminated the individual mandate tax penalty, that it could not be severed from the entire ACA. That would mean that the whole law should be thrown out. Congress eliminated the tax as part of the December 2017 tax cut package. On December 18, 2019, the U.S. Fifth Circuit Court of Appeals in New Orleans agreed to strike down part of the Affordable Care Act provision, ruling that the requirement that people have health insurance was unconstitutional on a 2-1 decision and sent the case back to the lower court in Texas for further analysis. As a result, the U.S. Supreme Court decided to take up the case in October.
The repeal of the ACA has been led by several Republican state attorneys general spearheaded by the Texas Attorney General Ken Paxton. That action has been countered by several Democratic attorneys general led by the California Attorney General Xavier Becerra. Based on the briefs, supporters of the ACA include AARP, the American Medical Association, and the Service Employees International Union, longtime supporters of the Act. Some of the other supporters of keeping the ACA in place include unusual parties. The Montana Attorney General Timothy Fox and Ohio Attorney General Dave Yost, both Republicans. A brief that was filed on behalf of economists who described themselves as “53 distinguished professors and internationally recognized scholars of economics and health policy and law…[from] the Johnson, Nixon, Ford, Carter, Bush, Clinton, Bush and Obama administrations.
Data from CMS in June indicated that 487,000 people obtained health care coverage after losing it due to the COVID-19 spread this early spring. The ACA allows for a special enrollment period (SEP) after job loss.
An analysis by the Kaiser Family Foundation released on Wednesday, May 13, 2020, showed that, because of the unemployment caused by the pandemic, “Among people who become uninsured after job loss, we estimate that nearly half (12.7 million) are eligible for Medicaid, and an additional 8.4 million are eligible for marketplace subsidies [ACA marketplace], as of May 2020.”
The Court has many options, they could strike down the entire law, they could strike it down in a period of time that would allow lawmakers under the next Congress and presidential term to pass a fix or a replacement, or they could narrowly deal with the mandate. They could also uphold the law, but the original ruling upholding the law in the summer of 2012 was a 5 to 4 ruling with Justice Ruth Bader Ginsberg, a part of the Chief Justice John Roberts majority opinion.