“Ginsburg’s death is the nightmare scenario for the Affordable Care Act,” said Nicholas Bagley, a University of Michigan law professor who supports the law. “If the suit had a trivial chance of success yesterday, it has a new lease on life.”
Friday night’s announcement that the justice had succumbed to cancer is the latest twist along an uncommonly tortuous path for a major piece of social legislation. The ACA has been in peril in the courts or from President Trump and congressional Republicans becoming President Barack Obama’s main domestic policy achievement. The newest legal challenge comes as polls were showing health care was a dominant issue in the November elections, even before fallout from the ronavirus pandemic removed millions of Americans’ jobs and health insurance and elevated people’s worries about whether they would have coverage if they got sick.
The Supreme Court is scheduled to hear oral arguments on Nov. 10, a week after Election Day, in an ACA case with sharp partisan contours. It is based on a lawsuit that was initiated by a coalition of Republican state attorneys general and is supported by President Trump’s Justice Deparement. Another coalition of mostly Democratic attorneys general is trying to uphold the law.
The case turns on different legal arguments than those when the Supreme Court upheld the ACA in 2012 and 2015. The current case, California v. Texas, contends that the statute is unconstitutional because a 2017 change in federal tax law eliminated tax penalties for Americans who violate a requirement in the law that most people carry health coverage. The suit contends that if that part of the ACA is invalid, so is the rest.
The court’s eventual decision has stakes for the health-care system and Americans’ lives far beyond the insurance requirement, which has been moot since 2019. The most popular aspect of the law protects people with preexisting medical conditions from being frozen out of health insurance or charged higher rates. Democrats used this issue successfully in the 2018 midterm elections to win control of the House, and former vice president Joe Biden, the Democratic presidential nominee, has started running ads on this theme in the most competitive states.
Other aspects of the law include the expansion of Medicaid in 38 states plus the District; insurance marketplaces created for people without access to affordable health benefits though a job, and federal subsidies for nearly 9 in 10 who buy health plans through those marketplaces. The law also fills in gaps in Medicare drug coverage, defines a set of essential health benefits that insurers must cover, requires some restaurants to list calories of menu items, and compels many employers to create private spaces for mothers to nurse babies.
In important respects, the ACA has become part of the basic plumbing of the U.S. health-care system,” Bagley said. “Ripping it out at this point would create enormous problems.
Legal scholars across the ideological spectrum have regarded the case the Supreme Court plans to hear in November as legally weak. Still, it prompted a Texas district court judge to invalidate the entire law in late 2018, though it remains in place during appeals. And the New Orleans-based 5th Circuit Court of Appeals agreed late last year the insurance requirement is unconstitutional but sent back to the lower judge the question of whether the rest of the law could remain — in legal parlance, be “severed.”
On Saturday, scholars said they regarded the law’s survival chances as dampened with Ginsburg’s death. Assuming the court’s remaining three liberals vote to uphold it, they now would need to find two justices to join them — one more than if the late justice were alive to participate, said Timothy S. Jost, a retired law professor at Washington and Lee University.
Still, both Jost and Bagley noted that Chief Justice John G. Roberts Jr. and the court’s newest member nominated by Trump, Brett M. Kavanaugh, have written recent opinions in cases involving other issues, reasoning that parts of laws could be invalidated while leaving the rest in place — a position that could preserve the other parts of the ACA even if the court rules the insurance requirement no longer being enforced as unconstitutional.
An anti-ACA law professor at Case Western University, Jonathan Adler, predicted that there are not more than four justices likely to go beyond the idea that the insurance mandate is invalid to striking down the entire statute. In that case, Ginsburg’s presence, had she lived, would not make a difference in preventing the whole law from being overturned.
The scholars said the outcome of the case is unlikely to be affected by whether the Senate confirms a successor to the late justice this year. If the court ended up in a 4-4 tie, that would preserve the lower court’s ruling striking down the insurance mandate, as would a 6-3 split reflecting a newly strengthened conservative majority of justices.
And unless a new justice were confirmed by early November, he or she would be unlikely to participate in the case, because the court’s practice is for justices to take part in decisions only when they have attended the oral arguments. Occasionally, the court has rescheduled oral arguments when it has not had its full complement of nine justices.
Assessing the political implications of Ginsburg’s death in light of the pending ACA challenge, Whit Ayres, a Republican pollster and political consultant, said that voters opposed to the law are more likely to be motivated by the opportunity for Trump to choose a Supreme Court nominee with conservative views on social issues, such as abortion, than on health care.
Celinda Lake, a Democratic consultant who is a Biden campaign pollster, said that polling for other clients this year suggests that Ginsburg’s death could prove useful to Democratic candidates up and down the ballot if voters perceive the law to be in jeopardy. Lake said polls suggest that Democratic voters had been concerned about whether candidates supported the health-care law but had not regarded it as in danger.
“It totally refocuses the debate,” Lake said, adding that polls show voters remain especially focused on preserving insurance protections for preexisting conditions, with many Americans fearing this year that they could be responsible for bills if they got cancer or were infected with the novel coronavirus.
Suburban woman and older Americans, in particular, hold such views — both important constituencies in the November elections, she said. And women who are Independents, especially in rural areas, share these concerns, even though they may not be aligned with Democrats on expanding government-financed health care or other more progressive health-care issues, Lake said. “It gets us back to terrain that produces the biggest advantage for us,” she said of Democratic candidates.