Health insurance for millions in peril -- Nov. 5, 2020 column

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 decision.

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.

Besides protecting 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 premiums.

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 challenges.

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.

Republicans and 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.

 

 

 

 

 

Let the sun shine in Supreme Court -- Jan. 8, 2015 column

By MARSHA MERCER

The Supreme Court is poised this year to make momentous rulings – on the future of the Affordable Care Act, pregnant workers’ rights on the job and, probably, same-sex marriage.  

If you want to see the court in action, though, you’ll have to be present – just as when everybody wrote with a quill pen. Speaking of which, white quills are still set out on counsel tables every day the Supreme Court is in session – a nice touch for the lawyers arguing cases.

But citizens of the 21^st century shouldn’t have to journey to Washington to see justice.

After all, millions of Americans watch the Super Bowl without having to travel, Rep. Steve King, R-Iowa, said last month at a hearing of the House Judiciary subcommittee on courts. Most people watch the game on TV -- a technology that was cutting edge 60 years ago.

The hearing was on the proposed Sunshine in the Courtroom Act, a perennial, bipartisan effort to open the Supreme Court and lower federal courts to television cameras.

Republicans and Democrats in the House and Senate as well as C-SPAN and media and legal organizations have tried unsuccessfully for decades to persuade the Supreme Court to televise its proceedings.

C-SPAN, which began covering the House of Representatives in 1979 and the Senate in 1986, first made a request to cover oral arguments to Chief Justice William Rehnquist in 1988.

Chief Justice John G. Roberts Jr. dashed hopes that the court might relent in 2015 in his year-end report on the federal judiciary, released on New Year’s Eve. He didn’t mention cameras, but he did stress that the court shouldn’t embrace technology too quickly.

“The courts will often choose to be late to the harvest of American ingenuity,” he wrote. His goal is to make legal briefs and other filings available online “as soon as 2016.”

Roberts’ report prompted criticism from the incoming chairman of the Senate Judiciary Committee.

“The courts have yet to embrace the one technology that the founders likely would have advocated for – cameras in the courtroom,” Sen. Chuck Grassley, R-Iowa, a longtime proponent of televising court proceedings, said in a statement.

“The founders intended for trials to be held in front of all people who wished to attend. The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley said.

Every state allows TV coverage of courts, and some federal courts do too. The Supreme Court releases written transcripts and audio recordings of oral arguments, sometimes the same day.  

Independent organizations, including SCOTUSblog, blog arguments and opinions live as they happen. The court allows sketch artists. But cameras? No way.   

Justice David Souter quipped in 1996 that cameras would roll into the courtroom over his dead body.  Souter has since retired. Justice Anthony Kennedy has said the court should not become part of the “national entertainment network.” Justice Clarence Thomas has said his colleagues on the court would lose their privacy.

Justices fear that the public wouldn’t understand the court’s arcane proceedings, that lawyers might grandstand and that soundbites would wind up out of context on the news and late-night TV. 

A lot of that already happens. Ordinary citizens, kept at arms’ length, have to rely on pundits who offer flamboyant interpretations. If people could see the action for themselves, they would get a more measured view.

Interestingly, nominees to the court often approve of cameras but as justices favor keeping the door shut. For example, Elena Kagan said in her confirmation hearing in 2010 that she thought cameras in the courtroom would be “terrific.”

“I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people,” she said.  A couple of years later, though, Justice Kagan had cooled to the idea, saying she had “a few worries” about cameras.

Even if Congress were to pass the Sunshine in the Courtroom Act, you still might not be able to watch the Supreme Court from your den.  The act authorizes the chief justice and judges in lower courts to allow cameras but it doesn’t require them to do so. The court could still say no.

For the foreseeable future, if you want to see the court, you’ll need to saddle up for the trip to Washington – and that’s unjust.    

© 2015 Marsha Mercer. All rights reserved.

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