Although it’s risky to read too much into justices’ comments about cases argued before the U.S. Supreme Court, legal analysts found strong suggestions in such remarks to assert that the latest GOP challenge to the Affordable Care Act may have exceeded the legal validity of its extreme contentions.
This could mean that Republicans — state attorneys general as well as the Trump Administration — may find failure in California v. Texas. This is political partisans’ legal push to get the high court to strike down Obamacare, focusing on the individual mandate that imposed financial penalties to ensure that Americans obtain health insurance.
The mandate originally was portrayed by supporters as integral to Obamacare, ensuring its insurance markets did not get swamped with only the poorest and sickest Americans and dooming federal efforts to provide affordable health coverage to poorer and middle-class Americans. The high court, in an earlier and important case, upheld the ACA, arguing its use of the mandate was a legitimate exercise of government taxing powers.
But the Trump Administration, after failing in its first year to get Congress to kill the ACA, slashed the mandate to zero, all but eliminating it as part of the later $1-trillion-plus tax cut Republicans pushed to benefit the wealthiest of corporations and the richest few.
That, in turn, triggered a stark argument by Republican state attorneys general: If the mandate no longer existed, neither should the entire ACA. They persuaded an extreme federal judge in Texas to accept this argument and he struck down Obamacare. An appellate court supported the judge’s view that the mandate was legally unacceptable but ordered him to reconsider the vital issue of “severability,” whether this section of the 2,000-page law could go but the rest of it should stand. Democratic state attorneys general intervened. They asked the high court to take up and reject the GOP arguments.
Crucial conservative duo demurs
Conservative justices made comments during oral arguments of the case that suggested they are not buying the Republicans’ contentions, as the Washington Post reported:
“Two key members of the court — Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh — said plainly during two hours of teleconferenced arguments that Congress’s decision in 2017 to zero-out the penalty for not buying health insurance did not indicate a desire to kill the entire law. With that, the latest effort to derail President Barack Obama’s landmark domestic achievement seemed likely to meet the fate of past endeavors.”
As the newspaper also reported:
“’I think it’s hard for you to argue that Congress intended the entire act to fall … when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle D. Hawkins, the Texas solicitor general marshaling the effort on behalf of 18 Republican-led states. ‘I think, frankly, that they wanted the court to do that. But that’s not our job,’ he said.”
As for Kavanaugh, he was reported on, thusly:
“Kavanaugh was not coy. He said several times that the court’s precedents — presumably including an opinion he wrote last term — created a strong presumption that a law should be saved if the constitutional infirmity can be easily excised. ‘It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,’ Kavanaugh told Hawkins.”
Swapping veggie jibes
The conservative justices did poke Democratic supporters of the ACA and their seeming reverse on the necessity of the mandate. Roberts traded vegetable barbs with Washington lawyer Donald B. Verrilli Jr., who as Obama’s solicitor general had defended Obamacare previously, the Washington Post reported:
“Roberts reminded Verrilli that eight years ago, he and the law’s defenders said the mandate was crucial to the law. ‘But now the representation is that “Oh no, everything is fine without it.” Why the bait and switch?’ Roberts asked. Verrilli said the mandate was crucial at the time to create new insurance markets, with subsidies as ‘carrots’ and the requirement to either purchase insurance or pay a penalty a ‘stick.’ ‘It’s turned out that the carrots work without the stick,’ he said. Roberts remembered the 2012 debate about a different vegetable, and whether Congress’s ability to force consumers to buy insurance could also force them to purchase healthier food. ‘We spent all that time talking about broccoli for nothing?’ Roberts asked.”
In all seriousness, the GOP challenge to the ACA came with remarkably bad timing. The coronavirus pandemic rages, the economy has been savaged, and health care rated as a top issue for Americans voting in the presidential campaign.
Popular sentiment has swung behind Obamacare, as the 2018 midterms showed, giving Democrats control of the House. Preserving the ACA became a mantra for Democrats battering GOP opponents.
The program’s value was underscored not only in providing tens of millions with health coverage, including through a significant expansion of the Medicaid program affecting the poor, aged, and chronically sick and chronically mentally ill. The ACA has become an important way for millions of newly jobless Americans — those unemployed by pandemic-related slashes in corporate America — to secure continued health insurance, with many also seeking Medicaid coverage due to their recent impoverishment.
For middle class Americans, the ACA also became a hot-button issue: They did not want to be stripped of safeguards, so that insurers could refuse them coverage due to pre-existing conditions. This issue alone could affect coverage for tens of millions. They did not want to see insurers return to imposing annual and lifetime limits on benefits, for example, if they suffer chronic diseases, including cancer. Parents came to value the ACA provision that let them keep their children on their coverage until age 26. And women saw the importance of Obamacare’s reproductive health protections and assurances that they would not be charged more than men for comparable coverage due to gender biases.
What happens in a Biden Administration?
President-elect Biden campaigned on shoring up and expanding the ACA — not on trying to get in place a major, new single-payer system that other Democrats wanted and that got dubbed as “Medicare for all.” His health plans, however, already are undergoing a reality check: Democrats’ hold on the House has lessened with the 2020 elections, and control of the Senate may not be decided until Georgia voters decide two run-off races in January.
Republicans have dragged their feet in recognizing Biden’s election win, will they suddenly shift and work across the aisle to benefit Americans and their health needs? Can hospitals and other medical providers be cajoled, for example, into taking less money, so more Americans might be able to “buy their way” into Medicare earlier than they can now?
A lot may change with Democrats taking over key posts and major sway on the federal health bureaucracy, including the mammoth Health and Human Services agency, as well as the Food and Drug Administration, the Centers for Disease Control and Prevention, and the National Institutes of Health. A Biden Administration would not make a priority of undercutting the ACA and encouraging “skimpy” health insurance that might have lower monthly premiums but prove to be all but useless to patients when they get sick and need coverage most. Democrats also may seek to increase health coverage for the poor, rather than seeking to create obstacles to their benefiting from the program with difficult job-seeking and other qualifying requirements.
Is it also possible that there is a right-center still in U.S. politics, and conservatives — ala the chief justice — may be weary and over the extreme, counter factual, anti-science, and other fringe positions pushed in recent times by political partisans? As one well-known high court analyst wrote of the latest ACA case before Roberts:
“His message to the many parties represented at the court … was essentially: Just stop. Stop asking the justices to do the work of Congress. Stop pulling the court into the partisan fracas. And perhaps especially, stop forcing this chief justice to return to the days when, as Roberts said Tuesday, ‘we spent all that time talking about broccoli …’ his role as chief justice still gives him a commanding presence and, as demonstrated in his questions to lawyers during the two-hour teleconference hearing, he continues to seek ways to minimize differences and — for now at least — avoid blockbuster rulings. The cautious, strategic Roberts does not want the court to drive someone else’s policy agenda, for example, by killing Obamacare when Trump and congressional Republicans failed … In the weeks ahead, the Roberts Court will face other social policy dilemmas and disputes between the executive branch and Congress. Roberts is apt to stick to his low-profile strategy.”
In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent health care. This has become an ordeal due to the skyrocketing cost, complexity, and uncertainty of treatments and prescription medications, too many of which turn out to be dangerous drugs.
Americans have battled for more than a decade over health insurance, which is but a part of the larger, more difficult matter of what the nation needs to do with health care. It should be a right, not a privilege. Insurance is a key to health costs, allowing us to share risks and giving us all small comfort and guarantee that the sudden, big illness or injury will not reduce us and our loved ones to medical bankruptcy and lives as indebted paupers.
By pursuing extreme positions on health-related issues, with Republicans insisting almost as theology that there is no government role in health care, we put an increasingly wobbly, $3 trillion-plus health care system at great risk — as the pandemic has, sadly, shown in huge fashion. We’ve got a lot of work to do — in turning down the volume, listening to each other, and figuring how we can improve all our lives and health, not sitting in political rubble, cussing and throwing rocks at each other.