On Monday, March 2, 2020, the Supreme Court announced it will take up a case that could ultimately strike down the Affordable Care Act (ACA), that is what its opponents are hoping. It also means that the Court in the fall of 2020 will have several highly controversial cases to consider (along with the previous week’s announcement that they would review anti-discrimination laws in the placement of children).
The ACA challenge is a result of action by some state attorneys general led by Texas A.G., Ken Paxton, and opposed by House Democrats and another set of attorneys general led by California A.G., Xavier Becerra. Originally District Court Judge Reed O’Connor, the same judge who ruled against the Indian Child Welfare Act (ICWA), had ruled the ACA was no longer legal since the Congress had eliminated the individual mandate to buy insurance when it eliminated the enforcement tax penalty. Congress included the repeal in their large tax cut package of late 2017. That ruling by O’Connor was reviewed by the U.S. Court of Appeals for the 5th District, which sent the decision back to O’Connor, directing him to decide if the elimination of the tax penalty voided the entire ACA, especially since the same Congress did not repeal the law. Instead of that review, the Supreme Court has taken up the matter for this fall. Democrats had been seeking a quicker review by the Supreme Court before this fall. The Court rejected that in favor of hearing the case this fall with a judgment likely in late winter to early summer 2021.
The argument to repeal the ACA is based in part on the original 2012 Supreme Court 5 to 4 ruling in which the Court upheld the law, in part, on the opinion of Chief Justice John Roberts to condition at least some of his opinion on the use of a tax enforcement measure.
With health care a likely issue for the fall presidential campaign, this case will likely push that even further into the election. One of the most popular provisions of the ACA is its ban on insurance companies from denying a person a policy if they have a “pre-existing health condition.” Before the enactment of the ACA, a pre-existing health condition could include any form of health condition. That could include some basic health conditions as common as high blood pressure to diabetes to pregnancy. Some states, before the ACA, had banned such restrictions, but they were of limited value. Customers could potentially skip buying insurance until they are sick, and as a result, premiums by insurance companies could be extremely high since there is no law to control costs. The ACA creates a pool of insured with requirements around coverage, costs, and benefits as well as tax subsidies to offset health insurance premiums. Insurance policies cannot deny coverage based on a pre-existing health condition.
One argument counter to what Judge O’Connor ruled is that the ACA should stay as is because if Congress wanted to eliminate the entire ACA law, they should have struck it down with the tax enforcement-mandate repeal.