A12 MONDAY, NOVEMBER 9, 2020
NWASHINGTON — Eight years ago,
the Affordable Care Act barely survived
its first encounter with the Supreme
Court. On Tuesday, a significantly more
conservative court will hear arguments
in a case brought by Republican state of-
ficials, backed by the Trump administra-
tion, seeking to destroy it.
At stake are health insurance for mil-
lions of people, protections for pre-exist-
ing conditions for millions more and the
fate of President Barack Obama’s signa-
ture domestic achievement, a law that
has become woven into the fabric of the
health care system in ways big and
small.
On the surface, events since the first
decision would seem to place the health
care law in real peril. Not only is the fed-
eral government itself now arguing for
striking it down, but President Trump,
who has criticized Chief Justice John G.
Roberts Jr.’s decisive vote to save the law
and pledged that his judicial nominees
would instead “do the right thing,” has
named three justices to the court. The
newest one, Justice Amy Coney Barrett,
has written critically of the chief justice’s
reasoning in the 2012 case.
But there are reasons to think the law,
or at least most of it, may survive.
To win, the Republican challengers
would have to run the table on three sep-
arate legal arguments. And they would
have to persuade the justices that the
law, which is popular and whose unrav-
eling could cause chaos in the health care
system, should be wiped out based on a
highly formalistic argument. During a
pandemic.
Striking down the law would increase
the ranks of the uninsured in America by
more than 20 million people — a nearly
70 percent increase — according to new
estimates from the Urban Institute.
The biggest loss of coverage would be
among low-income adults who became
eligible for Medicaid under the law after
all but a dozen states expanded the pro-
gram to include them. But millions would
also lose private insurance, including
young adults whom the law allowed to
stay on their parents’ plans until they
turned 26 and families whose income
was modest enough to qualify for subsi-
dies under the law that help pay their
monthly premiums.
Gone, too, would be the law’s famous
protections for Americans with past or
current health problems — pre-existing
conditions — which forbid insurers to
deny them coverage or charge them
more for it. This is the most popular part
of the law since it applies to so many mil-
lions of people; Mr. Trump had promised
he would preserve the protections if the
law was struck down, but he never ex-
plained how.
Health insurers have urged the court
to save the law. “Make no mistake: Inval-
idation of the A.C.A. would wreak havoc
on the entire health care system,” a trade
association, America’s Health Insurance
Plans, wrote in a supporting brief in the
new case, California v. Texas, No. 19-840.
The case is in a sense a sequel to the
one from 2012. Back then, the court up-
held the law’s requirement that most
Americans obtain insurance or pay a
penalty — the “individual mandate” —
saying it was authorized by Congress’s
power to assess taxes. The vote was 5 to
4, with Chief Justice Roberts writing the
controlling opinion, which was joined in
its key section by the court’s four-mem-
ber liberal wing.
In 2017, after repeated Republican at-
tempts to repeal the law failed, Congress
made a seemingly minor adjustment: It
set the penalty for failing to obtain insur-
ance at zero. The new challenge starts
with the argument that this made the in-
dividual mandate unconstitutional be-
cause it could no longer be considered a
tax.
By itself, survival of the now toothless
mandate is inconsequential. But the
challengers go on to argue that removing
the mandate means the entire law must
fall. In legal terms, they argue that the
mandate cannot be severed from the rest
of the law.
This is where the challengers have an
uphill fight.
At Justice Barrett’s confirmation hear-
ings last month, Democratic senators
spent more time discussing the Afford-
able Care Act than any other subject.
They stressed the health law’s popular
provisions — like guaranteed coveragefor pre-existing conditions, emergency
care, prescription drugs and maternity
care.
The nominee, who was less than forth-
coming in answering other questions,
suggested that she was receptive to the
argument that the mandate could be sev-
ered from the balance of the law.
Recent Supreme Court decisions sup-
port that view.
In June, the court ruled that a provi-
sion of the law creating the Consumer Fi-
nancial Protection Bureau was unconsti-
tutional. But Chief Justice Roberts said
the rest of the law could stand. “We think
it clear that Congress would prefer that
we use a scalpel rather than a bulldozer
in curing the constitutional defect we
identify today,” he wrote.
The next month, in a case on a federal
law regulating robocalls, Justice Brett M.
Kavanaugh made a similar point. “Con-stitutional litigation is not a game of
gotcha against Congress, where litigants
can ride a discrete constitutional flaw in
a statute to take down the whole, other-
wise constitutional statute,” he wrote.
When the earlier challenge to the
health care law was argued in 2012, the
Obama administration did say that the
mandate could not be severed from two
related provisions, one prohibiting insur-
ers from turning away applicants and the
other barring them from taking account
of pre-existing conditions.
At the time, many health economists
believed the law’s success would depend
on its “three-legged stool” approach:
preventing insurers from denying cover-
age based on pre-existing conditions, re-
quiring everyone to buy insurance and
providing subsidies to make it afford-
able. If there were no penalty prodding
everyone to obtain insurance, the think-ing went, many younger and healthier
people would forgo it, leaving only older
and sicker people in the insurance pool.
That, in turn, would force insurers to
raise rates, leading more people to drop
their coverage in a self-reinforcing cycle.
But in fact, after Congress zeroed out
the law’s financial penalty for going with-
out health insurance in 2017, it turned out
that removing one of the legs had little
effect on how many people signed up for
coverage through the law’s market-
places. Enrollment in the marketplaces
has decreased slightly since 2017, but it
has not shown any signs of a “death spi-
ral,” when only sick people buy coverage
and the cost skyrockets as a result.
In a friend-of-the-court brief defend-
ing the law, scores of economists con-
cluded that “economic data demonstrate
that the A.C.A. remains fully effective
and operational even in the absence of
the individual mandate.”
In addition to the arguments on the
constitutionality of the mandate and
whether it can be severed from the rest of
the law, the challengers must also show
that they have suffered the sort of injury
that gives them standing to sue. It is not
clear that the states and the two individ-
uals who brought the suit can satisfy that
burden.
A mandate without a penalty, support-
ers of the law say, does not affect state
budgets or harm individuals, who now
face no financial consequence for going
uninsured.
Lower courts have so far sided with
challengers. A federal judge in Texas
ruled that the entire law was invalid, but
he postponed the effects of his ruling un-
til the case could be appealed. In Decem-
ber, the United States Court of Appeals
for the Fifth Circuit, in New Orleans,
agreed that the mandate was unconstitu-
tional but declined to rule on the fate of
the remainder of the health law, asking
the lower court to reconsider the ques-
tion in more detail.
If the Supreme Court strikes down the
entire law, political responses remain
possible. If Democrats manage to take
control of the Senate along with the
House, they could enact a simple legisla-
tive fix that would make the case moot.
They could bring back a nominal penalty,
even of $1. Or they could repeal the indi-
vidual mandate entirely, deflating the
plaintiffs’ argument.
In a divided Congress, such moves
seem unlikely. While the law remains
very popular among independent voters
as well as Democrats, and even most Re-
publican voters support its pre-existing
condition protections, Republicans over-
all still want to see the law overturned,
and it is hard — though not impossible,
given the stakes — to imagine Senator
Mitch McConnell of Kentucky, the major-
ity leader, agreeing to a fix.
Tuesday’s arguments, which will be
heard by telephone, are scheduled for 80
minutes but are likely to last two hours or
longer. Michael J. Mongan, the solicitor
general of California, representing a co-
alition of blue states, will defend the law;
Kyle D. Hawkins, the solicitor general of
Texas, representing a coalition of red
states, will urge that it be struck down.
Two other lawyers will also appear:
Jeffrey B. Wall, the acting U.S. solicitor
general, will argue for the Trump admin-
istration in support of Texas. And Donald
B. Verrilli Jr., who successfully defended
the law in 2012 as solicitor general in the
Obama administration, will argue for the
House in support of California.Supporters of the Affordable Care Act outside the Supreme Court in 2015. A new effort to strike down the law would increase the ranks of the uninsured in America by more than 20 million people.
BRENDAN HOFFMAN FOR THE NEW YORK TIMESPresident Trump with Chief Justice John Roberts in February. Mr. Trump has
criticized the chief justice for voting to save the Affordable Care Act in 2012.
POOL PHOTO BY LEAH MILLISPresident Obama signing the health care bill in 2010. The bill provided health insurance for millions of Americans.
DOUG MILLS/THE NEW YORK TIMESAffordable Care Act Faces
Fresh Scrutiny by Justices
Trump’s 3 Appointees Will Have a Say
By ADAM LIPTAK
and ABBY GOODNOUGH