The Supreme Court deemed the Affordable Care Act

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to hospitals, the insured, and tax payers. Because most uninsured people will eventually require uncompensated care, they impose costs on everyone through higher taxes and insurance premiums. Further, although the ACA’s mandate is unusual, it is not unprecedented. Mandatory worker contributions to Medicare, for example, are a compelled purchase of health insurance. The necessary and proper clause, which permits Congress to pass laws rationally related to the exercise of federal powers, may be the best argument in favor of the mandate because the mandate is necessary for the other insurance market reforms to work.

If the Court were to strike down the mandate, it would then have to determine whether the mandate is severable from the rest of the ACA. Although the ACA did not explicitly state that if part of the act were deemed unconstitutional the rest would survive, most ACA reforms are severable because they are unrelated to the mandate, such as funding for public health and community health centers. The more difficult question is whether the mandate is so intertwined with the ACA’s still unimplemented market reforms that the Court must strike them down.

The Court will also review the constitutionality of expanding Medicaid to all individuals with household incomes below 138% of the federal poverty level. The states argue that Medicaid expansion is unduly coercive because they could lose all Medicaid funding and not just the funding related to the expansion. The Court, however, is unlikely to uphold the coercion theory because state participation in Medicaid has always been optional and some states have openly discussed exercising their option to discontinue the program.

Finally, the Court will hear technical arguments concerning the Anti-Injunction Act (AIA), which prohibits lawsuits “for the purpose of restraining the assessment or collection of any tax.” The Court is unlikely to invoke the AIA because neither the administration nor the states contend that it applies.

The ACA will achieve near universal coverage, something that seemed unimaginable just a short time ago. Health reform envisages a social contract in which everyone shares the cost, recognizing that virtually everyone will become ill one day. The ACA and its individual mandate are not unjustified limits on freedom, but rather are vital to a decent society.

Gostin, Lawrence O. and Garcia, Kelli K., "Affordable Care Act Litigation: The Supreme Court and the Future of Health Care Reform" (2012). Georgetown Law Faculty Publications and Other Works. 742.
https://scholarship.law.georgetown.edu/facpub/742

What would happen if the Supreme Court struck down the Affordable Care Act?

The fate of the sprawling, decade-old health law known as Obamacare was already in question, with the high court expected to hear arguments a week after the presidential election in the latest case seeking to overturn it. But now, the death of Justice Ruth Bader Ginsburg increases the possibility that the court could abolish it, even as millions of people are losing job-based health coverage during the coronavirus pandemic.

A federal judge in Texas invalidated the entire law in 2018. The Trump administration, which had initially supported eliminating only some parts of the law, then changed its position and agreed with the judge’s ruling. Earlier this year the Supreme Court agreed to take the case.

Mr. Trump has vowed to replace Justice Ginsburg, a stalwart defender of the law, before the election. If he is successful in placing a sixth conservative on the court, its new composition could provide the necessary five votes to uphold the Texas decision.

[Read about three scenarios for how the Court might act.]

Many millions more people would be affected by such a ruling than those who rely on the law for health insurance. Its many provisions touch the lives of most Americans, from nursing mothers to people who eat at chain restaurants.

Here are some potential consequences, based on estimates by various groups.

As many as 133 million Americans — roughly half the population under the age of 65 — have pre-existing medical conditions that could disqualify them from buying a health insurance policy or cause them to pay significantly higher premiums if the health law were overturned, according to a government analysis done in 2017. An existing medical condition includes such common ailments as high blood pressure or asthma, any of which could require those buying insurance on their own to pay much more for a policy, if they could get one at all.

The coronavirus, which has infected nearly seven million Americans to date and may have long-term health implications for many of those who become ill, could also become one of the many medical histories that would make it challenging for someone to find insurance.

Under the A.C.A., no one can be denied coverage under any circumstance, and insurance companies cannot retroactively cancel a policy unless they find evidence of fraud. The Kaiser Family Foundation estimated that 54 million people have conditions serious enough that insurers would outright deny them coverage if the A.C.A. were not in effect, according to an analysis it did in 2019. Its estimates are based on the guidelines insurers had in place about whom to cover before the law was enacted.

Most Americans would still be able to get coverage under a plan provided by an employer or under a federal program, as they did before the law was passed, but protections for pre-existing conditions are particularly important during an economic downturn or to those who want to start their own businesses or retire early. Before the A.C.A., employers would sometimes refuse to cover certain conditions. If the law went away, companies would have to decide if they would drop any of the conditions they are now required to cover.

The need to protect people with existing medical conditions from discrimination by insurers was a central theme in the 2018 midterm elections, and Democrats attributed much of their success in reclaiming control of the House of Representatives to voters’ desire to safeguard those protections. Mr. Trump and many Republicans promise to keep this provision of the law, but have not said how they would do that. Before the law, some individuals were sent to high-risk pools operated by states, but even that coverage was often inadequate.

Of the 23 million people who either buy health insurance through the marketplaces set up by the law (roughly 11 million) or receive coverage through the expansion of Medicaid (12 million), about 21 million are at serious risk of becoming uninsured if Obamacare is struck down. That includes more than nine million who receive federal subsidies.

On average, the subsidies cover $492 of a $576 monthly premium this year, according to a report from the Department of Health and Human Services. If the marketplaces and subsidies go away, a comprehensive health plan would become unaffordable for most of those people and many of them would become uninsured.

States could not possibly replace the full amount of federal subsidies with state funds.

Medicaid, the government insurance program for the poor that is jointly funded by the federal government and the states, has been the workhorse of Obamacare. If the health law were struck down, more than 12 million low-income adults who have gained Medicaid coverage through the law’s expansion of the program could lose it.

In all, according to the Urban Institute, enrollment in the program would drop by more than 15 million, including roughly three million children who got Medicaid or the Children’s Health Insurance Program when their parents signed up for coverage.

The law ensures that states will never have to pay more than 10 percent of costs for their expanded Medicaid population; few if any states would be able to pick up the remaining 90 percent to keep their programs going. Over all, the federal government’s tab was $66 billion last year, according to the Congressional Budget Office.

Losing free health insurance would, of course, also mean worse access to care and, quite possibly, worse health for the millions who would be affected. Among other things, studies have found that Medicaid expansion has led to better access to preventive screenings, medications and mental health services.

Demonstrating against repeal of the Affordable Care Act in Fort Lauderdale, Fla., in July 2017.Credit...Joe Raedle/Getty Images

The health law took effect just as the opioid epidemic was spreading to all corners of the country, and health officials in many states say that one of its biggest benefits has been providing access to addiction treatment. It requires insurance companies to cover substance abuse treatment, and they could stop if the law were struck down.

The biggest group able to get access to addiction treatment under the law is adults who have gained Medicaid coverage. The Kaiser Family Foundation estimated that 40 percent of people from 18 to 65 with opioid addiction — roughly 800,000 — are on Medicaid, many or most of whom became eligible for it through the health law. Kaiser also found that in 2016, Americans with Medicaid coverage were twice as likely as those with no insurance to receive any treatment for addiction.

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States with expanded Medicaid are spending much more on medications that treat opioid addiction than they used to. From 2013 through 2017, Medicaid spending on prescriptions for two medications that treat opioid addiction more than doubled: It reached $887 million, up from nearly $358 million in 2013, according to the Urban Institute.

The growing insured population in many states has also drawn more treatment providers, including methadone clinics, inpatient programs and primary care doctors who prescribe two other anti-craving medications, buprenorphine and naltrexone. These significant expansions of addiction care could shrink if the law were struck down, leaving a handful of federal grant programs as the main sources of funds.

The law protects many Americans from caps that insurers and employers once used to limit how much they had to pay out in coverage each year or over a lifetime. Among them are those who get coverage through an employer — more than 150 million before the pandemic caused widespread job loss — as well as roughly 15 million enrolled in Obamacare and other plans in the individual insurance market.

Before the A.C.A., people with conditions like cancer or hemophilia that were very expensive to treat often faced enormous out-of-pocket costs once their medical bills reached these caps.

While not all health coverage was capped, most companies had some sort of limit in place in 2009. A 2017 Brookings analysis estimated that 109 million people would face lifetime limits on their coverage without the health law, with some companies saying they would cover no more than $1 million in medical bills per employee. The vast majority of people never hit those limits, but some who did were forced into bankruptcy or went without treatment.

About 60 million people are covered under Medicare, the federal health insurance program for people 65 and older and people of all ages with disabilities. Even though the main aim of the A.C.A. was to overhaul the health insurance markets, the law “touches virtually every part of Medicare,” said Tricia Neuman, a senior vice president for the Kaiser Family Foundation, which did an analysis of the law’s repeal. Overturning the law would be “very disruptive,” she said.

If the A.C.A. is struck down, Medicare beneficiaries would have to pay more for preventive care, like a wellness visit or diabetes check, which are now free. They would also have to pay more toward their prescription drugs. About five million people faced the so-called Medicare doughnut hole, or coverage gap, in 2016, which the A.C.A. sought to eliminate. If the law were overturned, that coverage gap would widen again.

The law also made other changes, like cutting the amount the federal government paid hospitals and other providers as well as private Medicare Advantage plans. Undoing the cuts could increase the program’s overall costs by hundreds of billions of dollars, according to Ms. Neuman. Premiums under the program could go up as a result.

The A.C.A. was also responsible for promoting experiments into new ways of paying hospitals and doctors, creating vehicles like accountable care organizations to help hospitals, doctors and others to better coordinate patients’ care.

If the groups save Medicare money on the care they provide, they get to keep some of those savings. About 11 million people are now enrolled in these Medicare groups, and it is unclear what would happen to these experiments if the law were deemed unconstitutional. Some of Mr. Trump’s initiatives, like the efforts to lower drug prices, would also be hindered without the federal authority established under the A.C.A.

Repealing the law would also eliminate a 0.9 percent increase in the payroll tax for high earners, which would mean less money coming into the Medicare trust fund. The fund is already heading toward insolvency — partly because other taxes created by the law that had provided revenue for the fund have already been repealed — by 2024.

Signs encouraging patient enrollment in a clinic in Jersey City.Credit...Andrew Burton/Getty Images

The A.C.A. required employers to cover their employees’ children under the age of 26, and it is one of the law’s most popular provisions. Roughly two million young adults are covered under a parent’s insurance plan, according to a 2016 government estimate. If the law were struck down, employers would have to decide if they would continue to offer the coverage. Dorian Smith, a partner at Mercer, a benefits consulting firm, predicted that many companies would most likely continue.

Doctors and hospitals could lose a crucial source of revenue, as more people lose insurance during an economic downturn. The Urban Institute estimated that nationwide, without the A.C.A., the cost of care for people who cannot pay for it could increase as much as $50.2 billion.

Hospitals and other medical providers, many of whom are already struggling financially because of the pandemic, would incur losses, as many now have higher revenues and reduced costs for uncompensated care in states that expanded Medicaid. A study in 2017 by the Commonwealth Fund found that for every dollar of uncompensated care costs those states had in 2013, the health law had erased 40 cents by 2015, or a total of $6.2 billion.

The health insurance industry would be upended by the elimination of A.C.A. requirements. Insurers in many markets could again deny coverage or charge higher premiums to people with pre-existing medical conditions, and they could charge women higher rates. States could still regulate insurance, but consumers would see more variation from state to state. Insurers would also probably see lower revenues and fewer members in the plans they operate in the individual market and for state Medicaid programs at a time when millions of people are losing their job-based coverage.

The A.C.A. requires nutrition labeling and calorie counts on menu items at chain restaurants.

It requires many employers to provide “reasonable break time” and a private space for nursing mothers to pump breast milk.

It created a pathway for federal approval of biosimilars, which are near-copies of biologic drugs, made from living cells.

These and other measures would have no legal mandate to continue if the A.C.A. is eliminated.