Those who sat through the Senate hearings for Amy Coney Barrett will recall the sometimes mind-numbingly technical discussion of “severance.” The import of that discourse became clear on Nov. 10 when the U.S. Supreme Court heard oral arguments about the Affordable Care Act (ACA). The case was brought by the Trump administration and 18 Republican-led states.
At issue is the constitutionality of the 2010 law, which covers a wide array of health concerns for which it offers protections. The ACA, commonly referred to as Obamacare, also provides the healthcare marketplace, through which people can buy health insurance plans in their states. The ACA offers tax subsidies to those within lower income brackets and, in most states, provides for Medicaid expansion.
Overturning the law would raise the number of uninsured Americans by 70 percent and would most impact low-income, working class and working poor Americans. As of December 2019, 2.8 million Pennsylvanians receive Medicaid with more than half having benefited from Medicaid expansion under the ACA.
The basis for the lawsuit is that when the Republican-led Congress ended the mandate requiring all Americans to have health insurance or face a penalty — exactly what auto insurers demand in most states, including Pennsylvania — it rendered the law unconstitutional. The mandate was ended in December 2017 as part of the GOP tax plan.
An estimated 20 million Americans get their health insurance through the healthcare marketplace. Another 131 million are protected by the clause that disallows people from losing their health insurance due to common pre-existing conditions like HIV/AIDS, diabetes, cancer, heart disease and other chronic illnesses. Having Covid-19 also counts as a pre-existing condition. More than 10 million Americans have tested positive for Covid-19 thus far, with about 100,000 new cases each day.
Prior to the ACA, women were charged more for insurance, and being female was itself a pre-existing condition. Maternity was not covered. No prophylactic testing for women, from PAP smears to detect cervical cancer to mammograms, which detect breast cancer, was covered by insurance. Both cancers are very common in women of all ages.
The ACA pre-existing conditions clause also protects trans women and men from having their hormone and other treatments discontinued.
Prior to the oral arguments there was serious concern that the ACA would be overturned. President-elect Joe Biden, who oversaw the adoption of the law with then-Speaker of the House Nancy Pelosi in 2009 and 2010, has spoken about its importance. Both he and Vice-President-elect Kamala Harris addressed how crucial the law is in a speech on Nov. 10.
The Affordable Care Act was the signature legislation of President Barack Obama and was the first healthcare reform since President Lyndon B. Johnson signed Medicaid and Medicare into law in 1965. In 1993, then First Lady Hillary Clinton presented similar healthcare reform legislation for Universal Health Care for the Clinton Administration, but the Republican-led Congress rejected it.
On Nov. 10, Vice-President-elect Harris explained how women and people of color especially would be impacted if the law were overturned. She asserted that in this time of the coronavirus pandemic, Republicans are attempting to take healthcare away from tens of millions of Americans.
Republicans in Congress attempted to overturn the ACA a record 70 times.
But the court threw a curve ball to both sides during the oral arguments. On that issue of severance that loomed large at Justice Barrett’s hearing, the majority of the court — including Barrett herself — seemed convinced that even if the individual mandate is no longer valid, the rest of the law can be left intact.
The two hours of oral arguments were conducted by telephone conference call. The court’s liberal justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor, were declarative in their support for the law as it stands and that the evisceration of the mandate did not impact the constitutionality of the law.
Chief Justice John Roberts, who has previously disappointed conservatives by upholding the law in other cases that sought to vitiate it, seemed to side with the liberals.
Most surprising was that both Justice Brett Kavanaugh and Justice Barrett appeared to agree with Roberts and the liberal justices that even if part of the law was struck down, the rest can be saved. That would create at least a five-vote or even six-vote majority to keep the law.
More than 20 million Americans now depend on the law for their health care. But 18 states led by Texas argued that the original ACA requirement that all Americans obtain health insurance or pay a tax penalty — the health insurance mandate — is unconstitutional and so then is the law itself.
The Supreme Court first upheld the ACA in 2012. Roberts wrote the majority opinion, saying that “the individual mandate was a legitimate exercise of Congress’s taxing authority.” But in 2017, the Republicans ended the mandate as part of their sweeping tax plan.
The Republican-led states arguing the case on Nov. 10 had filed suit then, stating that because the tax was ended, the revised law could not be saved. Accordingly, they argued, the entire law must be overturned.
Maybe not, said Roberts, telling Texas solicitor general Kyle Hawkins, “It’s hard for you to argue that Congress intended the entire act to fall when the same Congress didn’t even try to repeal the rest of the act.”
Roberts also said, “They wanted the court to do that, but that’s not our job.”
Kavanaugh added to Roberts, saying he considered this “a very straightforward case,” based on precedents that said the Supreme Court will not strike down an entire law if one part is found to be invalid, unless that was clearly Congress’s intent. Those prior cases, Kavanaugh said, suggest that “the proper remedy would be to sever the mandate and leave the rest of the act in place.”
Twenty states arguing in support of the ACA, led by California, said that with no mandate, no one is being forced to get health insurance and therefore the law is not unconstitutional.
“The law still provides a choice: buy insurance or do nothing,” Michael Mongan, California’s solicitor general, told the court.
Justice Elena Kagan, who was Solicitor General under President Obama, asked, “How does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” without the mandate.
The Republican-led states’ argument is that Congress intended for the ACA to include the mandate. Their argument now is that protecting women from paying twice as much for the same insurance, prohibiting insurers from denying coverage for pre-existing conditions even during a pandemic and allowing young people to stay longer on the policies of their parents when unemployment is at a record 25 million, could only be allowed if the mandate to buy insurance is intact.
But even the court’s most conservative Justice Samuel Alito seemed to doubt whether that is still true.
“There was a strong reason to think of the mandate like a part of an airplane that was essential to keep it flying,” Alito said. “But now it has been taken out, and the plane has not crashed. So how would we explain that the mandate in its present form is essential to the operation of the act?”
Donald B. Verrilli Jr. defended the law in 2012. He appeared on Nov. 10 on behalf of the House. “There were efforts to repeal the entire ACA,” Verrilli said. “Those efforts failed.”
The court will issue a decision by June 2021.