Amy Coney Barrett’s confirmation to the Supreme Court cements a 6-3 conservative majority and threatens a slew of progressive legislation, including LGBTQ+ rights, abortion access and gun-control laws. But the first case she is set to hear on November 10 will determine the survival of the Affordable Care Act. While it’s hard to say exactly how Barrett will rule, it’s possible the ACA might be completely overturned, which could leave more than 20 million Americans uninsured.
Republicans have made over 70 unsuccessful attempts to repeal Obamacare. This latest attempt centers around the validity of the individual mandate — the requirement that people either buy health insurance or face a financial penalty — and its importance to the overall functioning of the health-care system. The annual fee was $695 until a Republican-controlled Congress passed a law that said starting in 2019, it would be zero dollars. Building on this legislative victory, Republican state attorneys general filed a lawsuit arguing that the fee-less mandate, which they consider the beating heart of Obamacare, is now unconstitutional; without it, they say, the entire ACA must fall. (The Trump administration has also thrown its support behind the case.)
But Democratic state AGs disagree; the individual mandate hasn’t technically been repealed, they argue, and even if it were deemed invalid, it’s a limb that could simply be severed from the ACA while leaving the rest of the law intact. Though a Texas judge initially sided with Republicans, after a series of Democratic appeals, the case was bumped to the Supreme Court.
To help explain what’s at stake in the November hearing, the Cut spoke with Daniel E. Dawes, a health-care attorney who worked with the Obama administration to develop the ACA, and the author of The Political Determinants of Health and 150 Years of Obamacare.
The Supreme Court has already ruled twice to uphold Obamacare — why do Republicans think this time will be different?
They’re hoping third time’s a charm and that Chief Justice Roberts will side with Republicans. In 2012, he saved the day by voting with the four liberal justices to uphold Obamacare. Roberts said in his opinion that the individual mandate is essentially a tax and is thus constitutional. Republicans latched onto that and said, “Okay, fine, we’re going to zero it out then,” basically making it ineffective. They say Congress intended the provision to be the heart and gut of the law, and so the whole thing needs to go down. But now we’re in a very murky situation because the individual mandate hasn’t been completely abolished. The essential question is: Did Congress actually get rid of the individual mandate? Democrats say “No, that’s not enough, it’s still on the books.”
What are the possible outcomes of this case?
The Supreme Court justices could say “We still believe this law is constitutional, as we told you two times before, so stop wasting the court’s time with this foolishness.” But if the majority of justices find the individual mandate unconstitutional, they could decide to overturn the entire ACA or they could decide to sever it and keep the rest of the ACA intact.
Some health-care experts have said they think an overturn of Obamacare is unlikely because this is a weak legal case and the Supreme Court has upheld the law with stronger arguments. What do you think is likely to happen in this case?
You never know what Chief Justice Roberts may have up his sleeve. If the justices are following precedent they should only sever the individual mandate and uphold the rest of Obamacare — no other courts have overturned a federal health law in this country. That would throw Republicans and Democrats a bone and send a message of “Stop coming to the court to overturn this law, we’re done.” But I’m not optimistic that will happen.
Because with the addition of Judge Amy Coney Barrett to the Supreme Court, Chief Justice Roberts is no longer in a position to offer a swing vote for the liberals. Her confirmation gives the court another solid conservative justice who will likely vote to overturn the ACA. She publicly declared her opposition to Roberts’s 2012 ruling. She does not seem to believe Obamacare is a constitutional law. She could surprise us. But I think she knows her confirmation is being pushed forward by conservatives and President Trump because they know her views on the ACA. Roberts would need somebody else from the conservative wing of the court to stand with him on this issue.
Are there any likely candidates?
Most have been very consistent with the conservative, ideological view of the law. Justice Kavanaugh seems sensitive to legislative actions that bolster health-care access, so there is a slight chance he may very well rule in favor of upholding the ACA. But during this hyper-partisan period that we are in, I am not sure if his record gives me much hope. Even if he feels compelled to maintain aspects of Obamacare, as a relatively new justice to the Supreme Court, I think he is likely to bend to pressure from conservative lawmakers and appease them by ruling against the ACA in this case.
As someone who has dedicated his life to health-care reform and access for the most vulnerable populations, how are you feeling about the prospect of an ACA repeal?
I am devastated to see that we’re going down this path. I think the justices would be making a grave mistake with serious long-term economic implications for this country. The ACA has long been hanging in the balance, but this will be the closest brush with death since it was created. That Republicans would go to these lengths to try and dismantle this crucial part of President Obama’s legacy shows their deep-seated animosity towards him. Our policymakers need to wake up and understand the repercussions.
What exactly are the repercussions?
This is the most comprehensive and inclusive health law America has even seen, and it took 150 years to realize. Since the passage of the ACA, the number of uninsured people from African American and Hispanic populations have drastically dropped. It mandated employers provide mental health benefits. It protected women from being charged more for healthcare because of their gender.
Without it, we’re looking at 20 million people losing coverage. We’re looking at 16 million Americans who have a preexisting condition losing protection. A repeal would exacerbate health disparities for people of color, people with disabilities, and people with lower incomes. It will lead to higher mortality rates and the earlier onset of diseases. If you think we have a mental-health crisis looming as a result of the pandemic, imagine how much worse it’s going to get.
If you don’t think that what happens to these vulnerable populations will affect you, because of your power and privilege, I think it’s time to wake up. An overturn of Obamacare would also jeopardize America’s economic and national security interests, especially as the United States continues to grapple with COVID-19.
Does the prospect of a Joe Biden presidency give you hope? I read that if he’s elected, Biden could potentially reinstate the individual mandate fee Republicans got rid of. What could he do if the ACA is overturned?
The most effective tool in that president’s repertoire at that point, will be to apply pressure on Congress to act swiftly to remediate whatever specific part of the ACA the decision hinged on, or to craft something new in its place so that the American people are not left without coverage or direction. Just how much pressure the president would be able to exert depends largely on if Democrats are able to retake the Senate during this election, while maintaining control of the House. Yes, this would be a complicated process, but with the leadership of a president and vice-president who have spent so many years in the Senate, coupled with the fact that Joe Biden played a pivotal role in shepherding the ACA through Congress the first time, I’m fairly confident that he would make certain that in the event of such a disastrous ruling, the country would remain protected.