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The Supreme Court & Potential Implications for our Health Care System

The passing of Justice Ruth Bader Ginsburg has left a vacancy on the Supreme Court of the United States. On November 10, just a few days after the election, the Supreme Court is scheduled to hear oral arguments on a case that challenges the constitutionality of the Patient Protection and Affordable Care Act (ACA/Obamacare), and argues that the entire law should be struck down.

This case, now known as California v. Texas, is one that we have written about over the past few years, as it has worked its way through the court system. You can read more about the background of the case here, here, and here. The case began as a challenge to the section of the law called the “individual mandate,” or the requirement that a person have health insurance or pay a penalty. After Congress reduced the penalty to $0 in December of 2017, the case was brought in Texas challenging the ACA’s constitutionality.

This case was scheduled for oral argument before Justice Ginsburg’s death. Many legal scholars were confident that the law would be protected by a majority of the previous members of the Supreme Court. Now, this new vacancy on the Court will undoubtedly affect the future of the nation’s healthcare system.

There are six possible outcomes of the case:

Possibility 1: 5 – 3 Vote Upholding the ACA

If there is still a vacancy on the Supreme Court when they hear the case, they could rule that the ACA is constitutional in its entirety. The most likely scenario for this to happen is that Chief Justice Roberts and Justice Kavanaugh would agree to uphold the ACA, with Justices Bryer, Kagen, and Sotomayor, based on how they have voted in previous cases.

Possibility 2: 4 -4 Tie

If there is still a vacancy on the Supreme Court when they hear the case, and they have a tie vote. In the event of a tie, the lower court’s ruling would stand. The 5th Circuit Court of Appeals ruled that the individual mandate is unconstitutional without an associated cash penalty. The 5th Circuit also sent the case back to the Texas court to decide if the other parts of the law can stay without the individual mandate. (Note: This is the Judge that has already ruled the entire ACA unconstitutional). If this scenario happens, it would likely lead to additional appeals and the possibility for the Supreme Court to hear the case again in the future.

Possibility 3: Supreme Court Rules Only Portions of ACA Are Unconstitutional

The Court could rule that the portions of the ACA that are tied to the individual mandate, such as the consumer protections, are unconstitutional. These consumer protections include the guarantee of being able to purchase health insurance (regardless of age, gender, or health condition), limits on what insurance companies can charge, the prohibition on annual and lifetime limits on policies, the ability for young adults to stay on their parent’s policy until 26, etc. These consumer protections are a significant portion of what makes the ACA so important to people with pre-existing conditions.

Possibility 4: Supreme Court Rules the Entire ACA is Unconstitutional

If the current Supreme Court Justice nominee, Amy Coney Barrett, is voted on by the Senate and seated by November 10, the likelihood of the entire ACA being struck down increases exponentially. Prior to Justice Ginsburg’s passing, it was anticipated that the Court wouldn’t rule until June on this case. However, if Judge Barrett is seated quickly, then the Court could rule soon after oral arguments to strike down the ACA.

This ruling would result in more than 20 million people losing their health insurance (those with Marketplace plans or coverage through expanded Medicaid). That number is a very low estimate because it doesn’t take into account the fact that the COVID-19 pandemic has caused millions people to lose health insurance coverage through their jobs and pick up coverage from the Marketplace or Medicaid expansion in their states.

Additionally, the ACA has been law for more than 10 years and the entire health care system has been impacted, in one way or another. Employer plans could also begin to deny health insurance coverage for any pre-existing conditions (for up to one year). Programs that assist consumers could also disappear or lose funding, including but not limited to: coverage for preventive services and early detection screenings; grants for rural hospitals and for providers willing to work in rural areas; community health centers; and expanded prescription drug coverage through Medicare. Health care providers and hospitals will be affected as well, because the laws and regulations directing how they bill and do other business (such as reporting fraud) would be effectively erased.

Many benefits, protections, and other health insurance coverage options will lose the scaffolding on which they rest, because older laws affecting health insurance would come back into operation. This would leave many in the healthcare field scrambling to figure out how best to help the patients they serve and meet their needs.

Possibility 5: Supreme Court Punts

If there is still a vacancy on the Supreme Court when they hear the case on November 10, they could delay issuing a decision, and then hear them again once a new Justice is sworn in. Alternatively, the Court could reschedule oral arguments once a new Justice is sworn in. In this scenario, the unknown nature of Justice Ginsburg’s successor becomes especially important.

Possibility 6: Congress Acts

It is possible for Congress to pass legislation to reestablish the penalty. In fact, a bill has been introduced to exactly that, but it is likely to come to a vote.  But it that were to happen, the legal case would be moot.

It is important to note that some states have passed laws that provide similar protections to those in the ACA. However, there would still be other challenges for health care consumers in those states. For more information about state protections, take a look at the Triage Cancer Chart of State Laws.


Understand Your Options

All of this uncertainty about the future of our health care system comes right before open enrollment for 2021; however, Americans should remember that the ACA is still the law of the land for now. For information about health insurance basics, how to pick a plan, Medicare options, and more, visit our Health Insurance resource page.  For information about advocacy tips and opportunities visit our Advocacy resource page. Also, stay tuned here and follow us on social media for future updates about this case and other cancer community information.

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Monica Bryant
mb@triagecancer.org