The Supreme Court mostly stayed out of the spotlight during the frenzied week after Election Day. But on Tuesday, the justices are hearing a case that could upend the country’s health care system in the midst of a pandemic and leave tens of millions of people without health insurance.
In California v. Texas, a group of 18 Republican-led states1 and two individuals who live in Texas are challenging the constitutionality of a key component of the Affordable Care Act: the “individual mandate,” which required all Americans to obtain health insurance or be subject to a financial penalty — that is, before the penalty was reduced to $0 by congressional Republicans in the 2017 tax bill. The law’s challengers are backed by the Trump administration.
Of course, this isn’t the first time the 10-year-old law has been challenged. It’s outlasted years of Republican-led efforts in Congress to repeal it. And it’s twice survived scrutiny at the Supreme Court, in 2012 and 2015 (although both times the law was upheld by relatively slim margins). That might seem like a point in the law’s favor, but it’s going up against a more conservative slate of justices now, including Amy Coney Barrett, who has criticized Chief Justice John Roberts’s decisive vote to save the law in 2012. As a result, the fate of the ACA is more uncertain than it seemed just a few months ago.
If the Supreme Court guts the ACA, though, it could face a steep backlash in the court of public opinion. The law wasn’t always well liked, but it has steadily grown a lot more popular, with most Americans supporting key elements like protections for people with preexisting conditions. What’s more, the entire health care system has reorganized itself around the ACA, which means that nearly everyone in the country could feel the impact if the law were struck down. And with control of the Senate in doubt, there are serious questions about Congress’s ability to quickly preserve the most popular parts of the law — much less replace it with new, comprehensive health care reform.
For all these reasons and more, many legal experts think that even with the Supreme Court’s new conservative tilt, the justices are likely to keep most, if not all, of the law in place. But the stakes are high — for the court and the country — if a majority of justices do decide to strike the law down.
The most obvious consequence of overturning the ACA would be that more than 20 million people would be at serious risk of losing their health insurance, either through the marketplaces set up under the law to sell private plans, or through the expansion of Medicaid in many states. But there would be myriad other effects, too. Not only would protections for preexisting conditions be lost, but preventive care — like flu shots, a COVID-19 vaccine and mammography screenings for women over 40 — would no longer have to be covered. Health care plans also wouldn’t be required to cover as many types of care. And many young adults under age 26 could be booted off their parents’ health care plans.
A question that is now before the court, though, is that a key piece of the law’s structure has changed since 2012, when it was first upheld, in ways that call its constitutionality into question.
Back in 2012, one of the key issues before the Supreme Court was the legality of the “individual mandate” — a component of the ACA that required all Americans to obtain health insurance or pay a penalty. In a narrow 5-4 vote, the justices ruled that the individual mandate was permissible under Congress’s taxing power. But then, in 2017, the Republican-controlled Congress tweaked that provision, setting the penalty for not obtaining health insurance to $0.
Now, the GOP-led coalition that has brought the ACA back to the high court is contending that the mandate is unconstitutional since the “tax” attached to not having insurance is nonexistent — and that the mandate can’t be separated, or in legal parlance “severed,” from the rest of the law, meaning that the entire ACA is now unconstitutional.
This is an ambitious legal argument, to say the least.
Separate from the question of the constitutionality of the individual mandate, striking down an entire law because of one defective part may not be an especially popular move among some of the conservative justices. Just this summer, in a 5-4 decision involving the constitutionality of the structure of the Obama-era Consumer Financial Protection Bureau, Roberts summarized what he called the “settled” doctrine of severability, writing, “[W]e try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” The assumption, he explained, should be — unless there’s “strong evidence” to the contrary — that Congress didn’t intend for one faulty provision to doom the rest of the law. In her confirmation hearings in October, too, Barrett seemed to suggest that the individual mandate — if unconstitutional — wouldn’t necessarily mean the rest of the ACA would be invalid.
One counterargument against the GOP-led coalition’s case is that the health care markets can operate without the mandate. A friend of the court brief submitted by a group of economists argues that the individual mandate isn’t crucial to the functioning of the ACA from an economic perspective since the law has remained fully operational even without a penalty for not buying insurance. Some health insurers, meanwhile, have argued that invalidating the entire law along with the individual mandate would have scores of “serious consequences in disparate areas wholly untethered to the mandate.”
There are other legal arguments against the case, too — including the question of whether these states even have the ability to bring the lawsuit to court in the first place. But, so far, lower courts have sided with the law’s opponents in varying degrees. A federal district court judge in Texas struck down the mandate and the rest of the law in late 2018, and an appeals court partially upheld that decision a year later, ruling that the mandate was unconstitutional. (However, beyond the ruling on the mandate, it wasn’t a clear victory for the law’s challengers. The appeals court asked the lower court to reconsider the extent to which the mandate could be separated from the ACA.)
But let’s say a majority on the Supreme Court do rule that the entire ACA is unconstitutional. The big question, from a political perspective then, is what Congress could do to deal with the chaos that would inevitably ensue. The answer is complicated, as control of the Senate most likely hangs on two runoff elections in Georgia in January. So if Democrats managed to win the Senate, they could try to preempt the Supreme Court by changing the penalty to a nominal sum like $1, or repealing the individual mandate entirely. Or if the Supreme Court did strike down the law with Democrats in control of both houses of Congress and the White House, they could use the decision as an excuse to push for broader health care reform. But if Republicans maintain control of the Senate, none of those fixes seem likely to happen, leaving the health care system in real jeopardy.
In other words, a world in which the entire ACA is overturned by the time the current Supreme Court term ends in June seems somewhat unlikely, but understanding the risks of that scenario is important. The ACA has grown increasingly popular since Obama left office, and even a majority (66 percent) of Republicans want to maintain its protections on people with preexisting conditions, according to an October poll by the Kaiser Family Foundation. As I’ve written before, the Supreme Court can face serious backlash if it gets too far outside the bounds of public opinion — which, at least last term, Roberts seemed studiously determined to avoid.
So, as the justices hear oral arguments today, they may not be thinking only about the legal issues in the case — but about what might happen to the court as an institution if a popular health care law were upended by a handful of unelected judges in the middle of a pandemic.