The death of Supreme Court Justice Ruth Bader Ginsburg—and President Donald Trump’s controversial nomination of Amy Coney Barrett to fill her seat—have ignited concerns over how a court with a six-to-three conservative majority might rule on an upcoming case on the Affordable Care Act (ACA).
The Senate Judiciary Committee is scheduled to vote on Barrett’s confirmation this Thursday. On November 10 the court will hear Texas v. California. That case will decide whether to uphold a lower court’s ruling that the ACA’s individual mandate to purchase health insurance makes the entire act unconstitutional—or to declare that the mandate is “severable” from the rest of it. If the ACA as a whole is struck down, 20 million people in the U.S. would lose their insurance. Even if it is partially struck down, up to 129 million could lose protections for preexisting conditions—including the more than eight million who have had COVID-19. If she is confirmed before the case is heard, Barrett has given no assurances that she will vote to uphold the landmark health care law.
Many legal scholars say the case for nixing the entire ACA is very weak. But even if the court severs the mandate from most of the law—as Justice Brett Kavanaugh and others have hinted—and strikes down only parts of it, that decision could still do significant damage because the ACA is so intricately tied to the health care system, a number of experts say. Invalidating the law would “throw the nation into economic chaos, in addition to people not having health insurance,” says Georges Benjamin, executive director of the American Public Health Association, a professional organization that promotes public health. “The unintended consequences of even a small tinkering of the ACA could have enormous implications.”
In 2012 the Supreme Court ruled in National Federation of Independent Business v. Sebelius that the ACA’s individual mandate was constitutional because the penalty for not being insured could be considered a tax. But in 2017 Congress passed a tax bill that lowered the penalty to $0, beginning in January 2019. As a result, Texas and other states filed a civil suit claiming the mandate was unconstitutional in 2018. A federal judge in Texas ruled that the individual mandate was unconstitutional and nonseverable, making the entire law unconstitutional—but he did not overturn it. The decision was appealed and eventually made it to the Supreme Court, which is now preparing to hear the case.
A range of different outcomes is possible, according to Katie Keith, a part-time research faculty member at the Center on Health Insurance Reforms at Georgetown University and a principal at the consulting firm Keith Policy Solutions. First, the court will have to determine whether the plaintiffs have standing to challenge the mandate. “If the answer is no, the case kind of goes away,” she says. Second, it must decide whether the mandate is constitutional or not. “Reasonable minds could disagree,” she says, but the case also goes away if the mandate is found to be constitutional.