Source: Truthout

In a long-awaited decision, the Supreme Court rejected a right-wing challenge to the Affordable Care Act (ACA) in California v. Texas, preserving health insurance for 21 million people who are predominantly low-income and people of color.

The 7-2 opinion, written by Stephen Breyer, held that the plaintiffs did not have standing to contest the constitutionality of the ACA. Thus, since they could not demonstrate that they had been harmed by the “individual mandate,” the plaintiffs had no right to sue in the first place. Samuel Alito and Neil Gorsuch dissented. They would have thrown out the entire ACA.

Republican attorneys general from 18 states, led by Texas, and two individuals claimed the ACA’s mandate that individuals purchase health insurance was unconstitutional, even though there is no longer any penalty for failure to buy such insurance. The plaintiffs’ argument didn’t pass the straight face test, even for four of the Court’s conservatives. John Roberts, Brett Kavanaugh, Clarence Thomas and Amy Coney Barrett all agreed with the three liberals on the Court that the plaintiffs had no standing to bring the lawsuit in the first place.

The Court never reached the issue of whether the individual mandate was constitutional or whether, even if it was unconstitutional, the whole ACA should be overturned. Article III, section 2 of the Constitution sets forth the prerequisite of standing. It requires that a lawsuit raise a genuine “case” or “controversy” before a federal judge can review it. Breyer reaffirmed that the Court does not issue “advisory opinions.”

Since the ACA was enacted in 2010, right-wingers — including the Trump administration — have been trying to wipe it off the books. In 2012, the Court held in National Federation of Independent Business v. Sebelius that the monetary penalty for failure to purchase health insurance constituted a permissible tax and the individual mandate was therefore constitutional.

In 2017, Congress nullified the penalty by reducing it to $0, leaving no consequence for individuals who do not buy insurance. Plaintiffs in the current case then sued, arguing that the individual mandate was unconstitutional because Congress had zeroed out the penalty so it could no longer be justified as a tax.

A U.S. District Court judge in Texas held that the plaintiffs had standing to sue, the individual mandate was unconstitutional, and the individual mandate was not severable from the rest of ACA so the entire Act must fall.

The Fifth U.S. Circuit Court of Appeals agreed with the District Court that plaintiffs had standing and the mandate was unconstitutional. But the appellate court determined that the District Court’s analysis was “incomplete” and sent the case back to the lower court to consider evidence of whether the individual mandate was severable from the rest of the Act.

Attorneys general in California and 15 other states, together with the District of Columbia, intervened to defend the ACA. The House of Representatives joined the defenders of the ACA at the appellate stage. After the Court of Appeals remanded the case to the lower court, the defenders asked the Supreme Court to review the case and it agreed to do so.

Breyer wrote, “With the penalty zeroed out, the IRS can no longer seek a penalty from those who fail to comply” with the requirement to buy insurance. Thus, “there is no possible Government action that is causally connected to the plaintiffs’ injury — the costs of purchasing health insurance.”

As a result of the Court’s decision to uphold the ACA, insurers cannot reject 133 million people living with pre-existing conditions — including those who have tested positive for COVID-19 — or charge them substantially higher premiums. Young adults who have been allowed to remain on their parents’ health insurance policies until age 26 will not lose their coverage. If the Court had struck down the ACA, the biggest losers would have been low-income adults who became eligible for Medicaid after it was expanded in 38 states and Washington D.C. and extended coverage to more than 15 million people.

Seventy-eight percent of enrollees in the ACA now have a choice of three or more insurance providers, whereas only 57% had such a choice in 2017.

For years, Republicans promised they would abolish the ACA and replace it with something better, but they never made any concrete proposals. Even many congressional Republicans who opposed the ACA distanced themselves from the plaintiffs’ lawsuit. Robbing people of their health insurance in the midst of a deadly pandemic was not good politics.

Some Republicans are resigned to the survival of the ACA. Indeed, Sen. Roy Blunt (R-Missouri) said, “It’s been my public view for some time that the Affordable Care Act is largely baked into the health care system in a way that’s unlikely to change or be eliminated.” Sen. Josh Hawley (R-Missouri), who represented one of the plaintiffs in the lawsuit against the ACA as attorney general of Missouri, said the Supreme Court had made clear “they’re not going to entertain a constitutional challenge to the ACA.”

But additional challenges to the ACA may reach the high court in the future. One such lawsuit is Kelley v. Becerra, which contests insurance plans that cover preventive care including birth control. Five members of the Supreme Court have indicated agreement with that position.

Nevertheless, the Court’s decision in California v. Texas is a significant affirmation that the 21 million people who now receive health care through the ACA should not lose their insurance. This result is an indication that the high court — even with its overwhelming majority of right-wingers — has little appetite to overturn the ACA.

Copyright Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. 

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