The Supreme Court will hear arguments Tuesday in the latest GOP challenge to ObamaCare, this time with a strengthened conservative majority on the bench.
The arguments come just a week after a contentious election in which more than 74 million Americans voted for President-elect Joe Biden, who campaigned on bolstering the Affordable Care Act (ACA).
Court watchers say a number of outcomes are possible when a decision is handed down, likely in June. The most extreme scenario would involve conservative justices striking down the entire 2010 law, a result that doctors’ groups say would threaten to throw the nation’s health care system into chaos at a time when the country could still be in the grips of the coronavirus pandemic.
“Invalidating provisions that have expanded access to health insurance coverage … would have a devastating impact on doctors, patients, and the American health care system in normal times,” reads an amicus brief from the American Medical Association. “However, striking down the ACA at a time when the system is struggling to respond to a pandemic would be a self-inflicted wound that could take decades to heal.”
Ending ObamaCare would cause some 21 million Americans to lose health coverage. It would also remove protections for 133 million people with preexisting conditions, scrapping regulations that prevent insurers from denying coverage or charging higher premiums based on a person’s health status.
The political ground has shifted at an astonishing rate since the justices agreed in March to take up this latest Republican challenge to the ACA. Since then, the country has gone from enjoying historically low unemployment and fewer than two dozen coronavirus cases, to seeing millions of newly unemployed Americans lose job-based health coverage and more than 10 million coronavirus infections across the country.
The makeup of the court has also changed with the September death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett last month, giving conservatives a solid 6-3 majority.
More recently, Biden racked up the most votes out of any presidential candidate in U.S. history, ending President Trump‘s reelection bid. Democrats now have a chance to retake control of the Senate if they win a pair of remaining Georgia races.
In the run-up to the Nov. 3 election, Democratic voters told pollsters that health care ranked as their top issue at the ballot box, and 8 in 10 registered voters said health care was an important factor at the ballot box.
For years, Trump and Republicans in Congress have vowed to replace the ACA with a superior health plan that offered the same protections for those with preexisting conditions. But despite having a decade to develop such a plan — and controlling both chambers of Congress during Trump’s first two years in office — Republicans have been unable to pass a replacement.
The challengers in Tuesday’s lawsuit comprise a group of more than a dozen Republican-led states. They argue that Trump’s 2017 tax cut law effectively rendered a key provision of ObamaCare unconstitutional and therefore the entire health law should be struck down.
The GOP challengers note that the law’s original design depended on a requirement that most people purchase insurance and set up a tax penalty for noncompliance. The Trump tax cuts zeroed out the penalty, which, according to the litigants, should cause the whole ObamaCare structure to collapse.
The Justice Department, on behalf of the Trump administration, will join the GOP states on Tuesday in urging the justices to strike down the law in its entirety.
Court watchers say that even if the challengers convince the justices that the health requirement provision is now illegal, they may face difficulty persuading the court to strike down the entire law. Instead, the court could opt to simply remove the so-called individual mandate that makes the purchase of coverage compulsory, while preserving the rest of the statute.
Still, to retain the law, the most likely scenario would involve the court’s three more liberal justices persuading two or more conservative members to join their ranks. Two previous GOP challenges to ObamaCare were rebuffed, but by small margins: a 5-4 vote in a 2012 case and a 6-3 decision in 2015.
The decisive vote in the 5-4 ruling belonged to Chief Justice John Roberts.
But the bench’s ideological makeup has morphed dramatically since those challenges.
Ginsburg’s death was followed by the swift confirmation of Barrett, Trump’s third justice and the sixth conservative on the bench.
During Barrett’s confirmation hearing, Democrats pointed to a law review article she authored in 2017 — in which she criticized Roberts’s reasoning in the 2012 case — as evidence of her hostility to ObamaCare. Barrett, however, has not indicated how she intends to rule on the issues that will be heard by the court Tuesday.
Senate Republicans went to great lengths during her confirmation hearings to downplay the likelihood that her addition to the court would seal the law’s fate.
But Trump, in an interview with “60 Minutes” before the election, sharply undercut that message, saying he would like to see the Supreme Court bring about an end to ObamaCare.
“I hope that they end it,” Trump told Lesley Stahl of CBS News. “It will be so good if they end it because we will come up with a plan.”