The United States Supreme Court is slated to hear the latest legal challenge to the Affordable Care Act (ACA), just a week after the 2020 election. If the court, with a new conservative majority following the likely confirmation of Judge Amy Coney Barrett, invalidates the ACA, more than 20 million Americans can instantly lose their health insurance.
What is the ACA?
This is the question many Americans were — and still are — asking. In 2013, three years after the act passed, a survey conducted by Carnegie Mellon University found that 86% of Americans between the ages of 25 and 64 did not understand the fundamental concepts of any kind of health insurance, including the ACA, also known as Obamacare. Although this has gotten better over time — more adults have at least formed an opinion on Obamacare over the years — it is worth understanding what is at stake because it impacts everyone.
In the words of Karen Pollitz, a healthcare policy expert and senior fellow at the Kaiser Family Foundation, the ACA is “a law enacted to ensure that all Americans have access to affordable health insurance. It does this by offering consumers discounts (known as tax credits) on government-sponsored health insurance plans, and by expanding the Medicaid assistance program to include more people who don't have it in their budgets to pay for healthcare.”
Other benefits include a lower cost for some screenings and prescription drugs, as well as people with preexisting conditions no longer being denied coverage. Some of the downsides to the ACA include people having to pay higher premiums for insurance and being fined if they do not have insurance.
So, can the United States Supreme Court topple the ACA?
The Center for Health Journalism hosted the webinar, “The New Supreme Court: The End of Obamacare?” Oct. 14, with Nicholas Bagley, professor of law at the University of Michigan Law School, and Joanne Kenen, executive healthcare editor at Politico, to explore this question.
Bagley said that the most likely outcome of the case is that the court says that Congress cannot go around ordering people to buy health insurance. However, the mandate of requiring individuals to have health insurance can be severed from the rest of the law, thus allowing the rest of the law to stand. This is known as severability, which might be a saving grace for the rest of the ACA. Alternatively, the court can say that the individual mandate cannot be severed from the rest of the act, thus destroying the entire ACA.
“With Judge Barret’s confirmation, the center of gravity in the court is going to shift to the right,” Bagley said. “That increases the odds that the Supreme Court could take an aggressive step to invalidate all or part of the Affordable Care Act.”
At her testimony for Supreme Court justice, Barrett spoke about severability. She said, “If you have a statute — and the Affordable Care Act is obviously a very long statute — if there is one provision within the statute that is unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute.” The Trump administration filed a brief saying that the individual mandate is not severable from the rest of the act. Although Barrett did not say how she would vote in the case, it seems likely that she is skeptical of the administration’s arguments.
Why should I care?
It is easy to turn a blind eye to a situation that is as complex as the ACA. However, the ACA has a broader impact than just those who have Medicaid or those who purchase health insurance on the exchange.
“If you go to the doctor and your kids get their shots for free, that’s because Obamacare said preventive care [is covered],” Kenen said. “The same way your kid gets their childhood shots, if you want to get your [COVID-19 vaccine], when we get a safe, effective one we can trust, that protection would go away.”
Much of this goes back to the question that drives health policy: is healthcare a right or a privilege? Health professionals argue that it is the former. There is no denying that the ACA has reduced socioeconomic disparities in healthcare access. Most of the politicians making these decisions at the top — those who are rich and white — are not impacted in the same way as people of color and those of a lower socioeconomic status. Decisions regarding access to healthcare should not be approached with a selfish mindset.
Kenen sums this point up nicely.
“I’m not saying that the ACA is a perfect piece of legislation,” she said. “We have gaps in coverage and we have affordability issues. Those need to be addressed. But [the ACA protects] some of these basic senses of security, these basic protections for people who are sick. At some point, we’re all going to get sick.”
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