What to Know as ACA Heads to Supreme Court — Again

The Supreme Court on Tuesday will hear oral arguments in a case that, for the third time in eight years, could result in the justices striking down the Affordable Care Act.

The case, California v. Texas, is the result of a change to the health law made by Congress in 2017. As part of a major tax bill, Congress reduced to zero the penalty for not having health insurance. But it was that penalty — a tax — that the high court ruled made the law constitutional in a 2012 decision, argues a group of Republican state attorneys general. Without the tax, they say in their suit, the rest of the law must fall, too.

After originally contending that the entire law should not be struck down when the suit was filed in 2018, the Trump administration changed course in 2019 and joined the GOP officials who brought the case.

Here are some key questions and answers about the case:

What Are the Possibilities for How the Court Could Rule?

There is a long list of ways this could play out.

The justices could declare the entire law unconstitutional — which is what a federal district judge in Texas ruled in December 2018. But legal experts say that’s not the most likely outcome of this case.

First, the court may avoid deciding the case on its merits entirely, by ruling that the plaintiffs do not have “standing” to sue. The central issue in the case is whether the requirement in the law to have insurance — which remains even though Congress eliminated the penalty or tax — is constitutional. But states are not subject to the so-called individual mandate, so some analysts suggest the Republican officials have no standing. In addition, questions have been raised about the individual plaintiffs in the case, two consultants from Texas who argue that they felt compelled to buy insurance even without a possible penalty.

The court could also rule that by eliminating the penalty but not the rest of the mandate (which Congress could not do in that 2017 tax bill for procedural reasons), lawmakers “didn’t mean to coerce anyone to do anything, and so there’s no constitutional problem,” University of Michigan law professor Nicholas Bagley said in a recent webinar for the NIHCM Foundation, the Commonwealth Fund and the University of Southern California’s Center for Health Journalism.

Or, said Bagley, the court could rule that, without the tax, the requirement to have health insurance is unconstitutional, but the rest of the law is not. In that case, the justices might strike the mandate only, which would have basically no impact.

It gets more complicated if the court decides that, as the plaintiffs argue, the individual mandate language without the penalty is unconstitutional and so closely tied to other parts of the law that some of them must fall as well.

Even there the court has choices. One option would be, as the Trump administration originally argued, to strike down the mandate and just the pieces of the law most closely related to it — which happen to be the insurance protections for people with preexisting conditions, an extremely popular provision of the law. The two parts are connected because the original purpose of the mandate was to make sure enough healthy people sign up for insurance to offset the added costs to insurers of sicker people.

Another option, of course, would be for the court to follow the lead of the Texas judge and strike down the entire law.

While that’s not the most likely outcome, said Bagley, if it happens it could be “a hot mess” for the nation’s entire health care system. As just one example, he said, “every hospital is getting paid pursuant to changes made by the ACA. How do you even go about making payments if the thing that you are looking to guide what those payments ought to be is itself invalid?”

What Impact Will New Justice Amy Coney Barrett Have?

Perhaps a lot. Before the death of Justice Ruth Bader Ginsburg, most court observers thought the case was highly unlikely to result in the entire law being struck down. That’s because Chief Justice John Roberts voted to uphold the law in 2012, and again when it was challenged in a less sweeping way in 2015.

But with Barrett replacing Ginsburg, even if Roberts joined the court’s remaining three liberals they could still be outvoted by the other five conservatives. Barrett was coy about her views on the Affordable Care Act during her confirmation hearings in October. But she has written that she thinks Roberts was wrong to uphold the law in 2012.

Could a New President and Congress Make the Case Go Away?

Many have suggested that, if Joe Biden assumes the presidency, his Justice Department could simply drop the case. But the administration did not bring the case; the GOP state officials did. And while normally the Justice Department’s job is to defend existing laws in court, in this case the ACA is being defended by a group of Democratic state attorneys general. A new administration could change that position, but that’s not the same as dropping the case.

Congress, on the other hand, could easily make the case moot. It could add back even a nominal financial penalty for not having insurance. It could eliminate the mandate altogether, although that would require 60 votes in the Senate under current rules. Congress could also pass a “severability” provision, saying that, if any portion of the law is struck down, the rest should remain.

“The problem is not technical,” said Bagley. “It’s political.”

What Is the Timeline for a Decision? Could the Court Delay Implementation of Its Ruling?

The court usually hears oral arguments in a case months before it issues a decision. Unless the decision is unanimous or turns out to be very simple, Bagley said, he would expect to see an opinion “sometime in the spring.”

As to whether the court could find some or all of the law unconstitutional but delay when its decision takes effect, Bagley said that happened from time to time as recently as the 1970s. “That practice has been more or less abandoned,” he said, but in the case of a law so large, “you could imagine the Supreme Court using its discretion to say the decision wouldn’t take effect immediately.”

If the court does invalidate the entire ACA, Congress could act to fix things, but it’s unclear if it will be able to, especially if Republicans still control the Senate. If the justices strike the law, Bagley said, “I honestly think the likeliest outcome is that Congress runs around like a chicken with its head cut off, doesn’t come to a deal, and we’re back to where we were before 2010,” when the ACA passed.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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Opposition to Obamacare Becomes Political Liability for GOP Incumbents

In the 2014 elections, Republicans rode a wave of anti-Affordable Care Act sentiment to pick up nine Senate seats, the largest gain for either party since 1980. Newly elected Republicans such as Cory Gardner in Colorado and Steve Daines in Montana had hammered their Democratic opponents over the health care law during the campaign and promised to repeal it.

Six years later, those senators are up for reelection. Not only is the law still around, but it’s gaining in popularity. What was once a winning strategy has become a political liability.

Public sentiment about the ACA, also known as Obamacare, has shifted considerably during the Trump administration after Republicans tried but failed to repeal it. Now, in the midst of the COVID-19 pandemic and the ensuing economic crisis, which has led to the loss of jobs and health insurance for millions of people, health care again looks poised to be a key issue for voters this election.

With competitive races in Colorado, Montana, Arizona, North Carolina and Iowa pitting Republican incumbents who voted to repeal the ACA against Democratic challengers promising to protect it, attitudes surrounding the health law could help determine control of the Senate. Republicans hold a slim three-vote majority in the Senate but are defending 23 seats in the Nov. 3 election. Only one Democratic Senate seat — in Alabama, where incumbent Doug Jones is up against former Auburn University football coach Tommy Tuberville — is considered in play for Republicans.

“The fall election will significantly revolve around people’s belief about what [candidates] will do for their health coverage,” said Dr. Daniel Derksen, a professor of public health at the University of Arizona.

The Affordable Care Act has been a wedge issue since it was signed into law in 2010. Because it then took four years to enact, its opponents talked for years about how bad the not-yet-created marketplace for insurance would be, said Joe Hanel, spokesperson for the Colorado Health Institute, a nonpartisan nonprofit focused on health policy analysis. And they continued to attack the law as it took full effect in 2014.

Gardner, for example, ran numerous campaign ads that year criticizing the ACA and, in particular, President Barack Obama’s assertion that “if you like your health care plan, you’ll be able to keep your health care plan.”

But now, Hanel said, the ACA’s policies have become much more popular in Colorado as the costs of health exchange plans have dropped. Thus, political messaging has changed, too.

“This time it’s the opposite,” Hanel said. “The people bringing up the Affordable Care Act are the Democrats.”

Despite Gardner’s multiple votes to repeal the ACA, he has largely avoided talking about the measure during the 2020 campaign. He even removed his pro-repeal position from his campaign website.

Democratic attack ads in July blasted Gardner for repeatedly dodging questions in an interview with Colorado Public Radio about his stance on a lawsuit challenging the ACA.

His opponent, Democrat John Hickenlooper, fully embraced the law when he was Colorado governor, using the measure to expand Medicaid eligibility to more low-income people and to create a state health insurance exchange. Now, he’s campaigning on that record, with promises to expand health care access even further.

Polling Data

Polling conducted by KFF for the past 10 years shows a shift in public opinion has occurred nationwide. (KHN is an editorially independent program of KFF, the Kaiser Family Foundation.)

“Since Trump won the election in 2016, we now have consistently found that a larger share of the public holds favorable views” of the health law, said Ashley Kirzinger, associate director of public opinion and survey research for the foundation. “This really solidified in 2017 after the failed repeal in the Senate.”

The foundation’s polling found that, in July 2014, 55% of voters opposed the law, while 36% favored it. By July 2020, that had flipped, with 51% favoring the law and 38% opposing it. A shift was seen across all political groups, though 74% of Republicans still viewed it unfavorably in the latest poll.

Public support for individual provisions of the ACA — such as protections for people with preexisting conditions or allowing young adults to stay on their parents’ health plans until age 26 — have proved even more popular than the law as a whole. And the provision that consistently polled unfavorably — the mandate that those without insurance must pay a fine — was eliminated in 2017.

“We’re 10 years along and the sky hasn’t caved in,” said Sabrina Corlette, a health policy professor at Georgetown University.

Political Messaging

Following the passage of the ACA, Democrats didn’t reference the law in their campaigns, said Erika Franklin Fowler, a government professor at Wesleyan University and the director of the Wesleyan Media Project, which tracks political advertising.

“They ran on any other issue they could find,” Fowler said.

Republicans, she said, kept promising to “repeal and replace” but weren’t able to do so.

Then, in the 2018 election, Democrats seized on the shift in public opinion, touting the effects of the law and criticizing Republicans for their attempts to overturn it.

“In the decade I have been tracking political advertising, there wasn’t a single-issue topic that was as prominent as health care was in 2018,” she said.

As the global health crisis rages, health care concerns again dominate political ads in the 2020 races, Fowler said, although most ads haven’t explicitly focused on the ACA. Many highlight Republicans’ support for the lawsuit challenging preexisting condition protections or specific provisions of the ACA that their votes would have overturned. Republicans say they, too, will protect people with preexisting conditions but otherwise have largely avoided talking about the ACA.

“Cory Gardner has been running a lot on his environmental bills and conservation funding,” Fowler said. “It’s not difficult to figure out why he’s doing that. It’s easier for him to tout that in a state like Colorado than it is to talk about health care.”

Similar dynamics are playing out in other key Senate races. In Arizona, Republican Sen. Martha McSally was one of the more vocal advocates of repealing the ACA while she served in the House of Representatives. She publicly acknowledged those votes may have hurt her 2018 Senate bid.

“I did vote to repeal and replace Obamacare,” McSally said on conservative pundit Sean Hannity’s radio show during the 2018 campaign. “I’m getting my ass kicked for it right now.”

She indeed lost but was appointed to fill the seat of Sen. Jon Kyl after he resigned at the end of 2018. Now McSally is in a tight race with Democratic challenger Mark Kelly, an astronaut and the husband of former Rep. Gabby Giffords.

“Kelly doesn’t have a track record of voting one way or another, but certainly in his campaign this is one of his top speaking points: what he would do to expand coverage and reassure people that coverage won’t be taken away,” said Derksen, the University of Arizona professor.

The ACA has proved a stumbling block for Republican Sens. Thom Tillis of North Carolina and Joni Ernst of Iowa. In Maine, GOP Sen. Susan Collins cast a key vote that prevented the repeal of the law but cast other votes that weakened it. She now also appears vulnerable — but more for her vote to confirm Brett Kavanaugh’s nomination to the Supreme Court and for not doing more to oppose President Donald Trump.

In Montana, Daines, who voted to repeal the ACA, is trying to hold on to his seat against Democratic Gov. Steve Bullock, who used the law to expand the state’s Medicaid enrollment in 2015. At its peak, nearly 1 in 10 Montanans were covered through the expansion.

As more Montanans now face the high cost of paying for health care on their own amid pandemic-related job losses, Montana State University political science professor David Parker said he expects Democrats to talk about Daines’ votes to repeal cost-saving provisions of the ACA.

“People are losing jobs, and their jobs bring health care with them,” Parker said. “I don’t think it’s a good space for Daines to be right now.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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Republican Convention, Day 1: A Campaign-Style Trump Speech and More

Before the prime-time GOP showcase began, President Donald Trump took to the podium Monday afternoon and delivered an approximately one-hour campaign-style speech to delegates after he was officially renominated by the Republican Party as its candidate for president.

His comments were wide-ranging, and our partners at PolitiFact found many to be either wrong, misleading, premature or in need of clarification. Here is the complete rundown from that speech and a wrap-up story detailing the rest of the evening. (PolitiFact also fact-checked former Vice President Joe Biden’s acceptance speech during the Democratic National Convention.)

Monday’s evening broadcast was full of platitudes. Amy Ford, a West Virginia nurse, applauded Trump’s steps during the pandemic to expand telemedicine, saying these policies are “essential” and will “continue to aid many that are unable to find transportation or a way to the doctor for regular checkups. This is especially true in rural America.” Dr. G.E. Ghali, a Louisiana oral surgeon and chancellor of a medical research center, spoke as both a clinician and a patient about how the administration’s efforts to provide emergency-use authorization for emerging treatments saved lives.

Video vignettes heralded Trump’s leadership during the coronavirus, focusing on things like Operation Warp Speed, the administration’s initiative to speed vaccine development, rather than the statistics: nearly 6 million Americans who have contracted COVID-19 or the more than 177,000 who have died. Trump also spoke with a group of first responders — including nurses, postal workers and a police officer from Colorado who said she had contracted COVID-19 in late March and has since recovered. “That means we don’t have to be afraid of you at all, right?” Trump said to her. “Once you’re recovered, we have the whole thing with plasma happening. That means your blood is very valuable, you know that, right?”

What follows are some of Trump’s statements from his afternoon speech geared to health policy issues:

Trump has repeatedly claimed that President Barack Obama left him with an empty national stockpile of emergency supplies. But this is an exaggeration.

The stockpile had a shortage of N95 masks, which were depleted as a result of the H1N1 outbreak in 2009 and not substantially replenished during the Obama or Trump administrations.

ProPublica found that the budget battles during Obama’s tenure after the Republicans won the 2010 election also hurt the stockpile’s budget.

Budget figures going back to 2009 show overall funding for the stockpile dropped to its lowest level in 2013, to about $477 million. Allocations have grown steadily since then to a 2020 budget of $705 million.

“We eliminated Obamacare’s horrible and very unfair individual mandate, which basically knocked out Obamacare. We knocked out Obamacare.”

Saying Republicans “knocked out Obamacare” is a stretch. Trump did sign legislation to eliminate the requirement that Americans have health insurance or pay a tax penalty, but eliminating this requirement did not get rid of Obamacare, or the Affordable Care Act, as it is officially known.

The administration supports a lawsuit by a group of Republican state attorneys general that argues that the ACA should be ruled unconstitutional. The lawsuit’s argument focuses on the Supreme Court’s previous ruling that the ACA was constitutional because it was based on a tax, which Congress has the authority to levy. With the tax penalty now eliminated, the lawsuit argues, the law should be scrapped entirely. The Supreme Court has agreed to hear the case.

In the meantime, much of the health law’s key provisions remain in force. In 2020, at least 11.4 million Americans have purchased insurance through the online marketplaces created under the act. More than 10 million others have signed up for Medicaid under the expanded eligibility requirements passed as part of the law. And people who have private insurance have benefited from new rules enacted by the law, from the ability to keep young adults on a parent’s policy to an end to out-of-pocket payments for certain preventive measures.

“So we protected your preexisting conditions, very strongly protected.”

We rated a similar claim as Pants on Fire. Protections for preexisting conditions under Obamacare remain on the books, but it’s not for lack of trying by the Trump administration.

For starters, the administration backs the lawsuit that would eliminate protections for preexisting conditions by getting rid of Obamacare.

In addition, the administration has not put forth any plan that might keep those guarantees in place. Every replacement health bill the administration has endorsed has offered protections less generous than those offered by the ACA.

Finally, the administration has issued a rule loosening restrictions on the length of so-called short-term health plans. While such plans could be more affordable for individuals in the market for insurance, they are not required to provide preexisting condition protections.

PolitiFact’s Louis Jacobson, Amy Sherman, Samantha Putterman and Miriam Valverde contributed to this story.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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