Yesterday, the U.S. Supreme Court held oral argument in California v. Texas, yet another challenge to the Affordable Care Act (ACA). This is the third time opponents of the ACA have dragged the law back before the Court since 2012. It is hard to believe we find ourselves at yet another critical national decision point that will affect the lives and health of millions of people just one week since the last one—the 2020 Election—but here we are. And the fact that this important health care law has largely survived previous legal challenges provides little solace; with the rushed confirmation of Amy Coney Barrett, this Court is very different from the one that upheld the ACA in 2012 and 2015.
In a nutshell, several states, led by Texas, are asserting that the entire ACA should be struck down because the individual mandate, the ACA’s requirement that everyone buy health insurance, is unconstitutional and cannot be “severed” from the rest of the law. Defenders of the ACA argue that the individual mandate is constitutional and, even if the individual mandate is found unconstitutional, the law should not be scrapped entirely.
Needless to say, the stakes in this case are incredibly high—for everyone. The U.S. healthcare system has been broken for decades, and there is a relatively widespread understanding that it was an incredibly inefficient system that did not view health care as a right or distribute the benefits and burdens of the system in an equitable way. As of 2010, the people of the U.S. were paying much more for lower quality care than peer countries.
If the Court were to strike down the ACA in 2021, it would throw the markets into chaos and return us to the same fumbling path the U.S. was on for the past 40 years. Such a decision would result in increased illness and death in the years to come, particularly for people with lower incomes or who are otherwise marginalized. That includes many of the people that Lambda Legal serves.
As we have done in the previous two challenges, Lambda Legal focused its legal firepower on people living with HIV and submitted a “friend of the court” brief in this case, explaining the potential consequences of striking down the ACA. We now have data to show that the ACA is successful in increasing access to health care for these groups, both through the insurance marketplaces and the expansion of Medicaid, and that increased access is creating better health outcomes. What was a predictive judgment when we wrote our first brief in 2011—based in large part on the experience of Massachusetts under RomneyCare—is now becoming the reality. As Lambda and others have asserted all along, we will not get a handle on the HIV/AIDS epidemic—or any new pandemics—without a more equitable, comprehensive and proficient health care system.
There are too many important components to the ACA—including its nondiscrimination protections for women and those seeking gender-affirming care—to discuss in this post, but there is one other very important provision about which people do not have an accurate impression: the pre-existing condition provision. This provision is crucially important to so many people, including people living with HIV. Many people, including the President, seem to think that if the ACA is struck down, Congress could just pass a law that prohibits the practice of excluding people from insurance plans or coverage if they have a pre-existing condition.
But the states challenging the ACA—and the Trump administration—are arguing that Congress does not have the power to enact such legislation under the Constitution. Besides for the fact that there never has been a replacement plan for the ACA, it becomes a lot harder to “repeal and replace” if the U.S. Supreme Court rules that Congress does not have the authority to legislate in this arena. A ruling in the Trump administration and the opposing states’ favor could hobble the ability of Congress to address this most important issue for decades to come. That would be a true catastrophe.
A few of the conservative justices, including Chief Justice Roberts, asked questions at oral argument yesterday indicating that they were not inclined to strike down the entire ACA, even if the individual mandate is unconstitutional. Let us hope the Court sees its way clear to preserving most of the ACA and protecting the health of all of us.
