By MARSHA MERCER
With the future of
health care in limbo during the prolonged presidential election, the Supreme
Court next week will take up a case that could yank health insurance from 23
million Americans during a pandemic.
On Tuesday, the court
will hear oral arguments in California v. Texas, which questions
whether the Affordable Care Act, a.k.a. Obamacare, is constitutional. What the
court ultimately decides could affect nearly every American family, not just
those who buy their insurance through Obamacare.
Republicans have long
argued Congress overstepped its authority when it imposed the individual
mandate, requiring most Americans to buy health insurance or pay a penalty.
In 2012, the court
upheld Obamacare 5 to 4. Chief Justice John Roberts, siding with the more
liberal justices, wrote that since the penalty was collected by the IRS, it could
be considered a tax and Congress has the power of taxation.
In 2017, Congress
zeroed out the penalty. A group of red states challenged Obamacare, arguing a
zero penalty means there is no tax and the law is unconstitutional. The Trump
administration backs the red states.
After rounds in federal
courts, a group of blue states supporting the law asked the Supreme Court to review
the issues. The House is also defending the law, which remains in effect.
This time, conservative
justices hold a 6 to 3 advantage. In a sign of the
significance of the case, the court has lengthened arguments from the usual 30
minutes to 40 minutes for each side side.
Tuesday’s arguments may
give us a glimpse into the mind of Justice Amy Coney Barrett, who said at her
confirmation hearing, “I am not hostile to the ACA,” although as a law
professor she wrote an article criticizing Roberts’s reasoning in the 2012
The current case raises
the doctrine of severability -- whether a
law can still stand if part of it is struck down.
Barrett said she has not talked or written about severability.
The highest court could
let Obamacare stand, abolish it entirely or do something in between. A ruling
is expected by summer.
No one argues Obamacare
is perfect. Many Americans bristled at being told they had to buy insurance, at
paying a penalty if they failed to do so and at the cost.
But. Under Obamacare, insurance
companies may no longer deny coverage to people with preexisting conditions
like cancer, diabetes or sleep apnea; charge them higher premiums, subject them
to long waiting periods or cap their benefits.
About 54 million
Americans under 65 – or 27% -- have a preexisting condition that, before Obamacare,
insurance companies could use to decline coverage on the individual market, an
analysis by the Kaiser Family Foundation found. In Virginia, about 1.3 million people
under 65 – or 26% -- have such conditions, the report said.
those with preexisting conditions, Obamacare also prevents insurers from
charging women more than men, permits children to stay on their parents’ insurance
policies until age 26 and offers subsidies to some customers to help pay
Most Americans get
their insurance through their employers or a government program like Medicare
or Medicaid, but no one knows when a job loss, divorce or other life event may require
buying insurance on the individual or non-group market.
The pandemic and
economic downturn prompted an additional 3 million Americans to seek help, raising
the number covered under Obamacare to 23 million, according to the
liberal-leaning Center for American Progress.
In the absence of
Obamacare, COVID-19 could be considered a preexisting condition, and survivors could
be denied health insurance.
President Donald Trump
has promised since 2016 to repeal and replace Obamacare with something better
and cheaper but has never presented a replacement plan.
He issued an executive
order on preexisting conditions in September that experts said was symbolic and
had no practical effect.
Obamacare has withstood
more than 70 Republican attempts at repeal in the House and many judicial
Before the election,
when it appeared the Senate and White House might flip blue, both Democratic
presidential nominee Joe Biden and House Speaker Nancy Pelosi said they would
work to strengthen Obamacare.
A Republican Senate led
by Mitch McConnell makes meaningful change more difficult and raises the stakes
for what the court decides.
Democrats need to work together to write a law that works and people will
accept. America will be healthier for it.
©2020 Marsha Mercer. All rights reserved.