With COVID-19 the newest preexisting condition, the Obama-era health law that protects Americans from insurance discrimination is more fragile following the death of Justice Ruth Bader Ginsburg.
A week after the presidential election, the Supreme Court is scheduled to hear arguments on an effort backed by President Donald Trump to strike down the Affordable Care Act, or ACA, in its entirety. Former President Barack Obama’s landmark law bars insurers from turning away people with health problems, or charging them more.
With Ginsburg on the court, there seemed to be little chance the lawsuit championed by conservative-led states could succeed, given that she and four other justices had twice previously voted to uphold important parts of the health law. But that 5-4 majority is gone following Ginsburg’s death last Friday from complications of metastatic cancer of the pancreas.
Yet it is not at all clear what the court will do. A narrow ruling might leave most of the law intact, sparing protections for people with preexisting conditions, Medicaid expansion, health insurance subsidies and other core elements. In that case Ginsburg’s death might not turn out to be a crucial difference in the court’s consideration.
Nonetheless, House Speaker Nancy Pelosi has accused Trump of wanting to rush a conservative replacement for Ginsburg through Senate confirmation partly so he can accomplish his unfilled vow to repeal “Obamacare.” A new justice could be seated in time for the Nov. 10 arguments.
“There’s many, many people in our country — and millions more now because of coronavirus — who have preexisting medical conditions,” she said Sunday on ABC. “The president has not been truthful in what he has said about that. He is in court to crush the preexisting condition as he crushes the Affordable Care Act, instead of crushing the virus.”
Said Sen. Ron Wyden, D-Ore., “If you don’t trust Republicans with your health care, you shouldn’t trust them with the Supreme Court seat.” Preserving safeguards for people with preexisting conditions is a top argument for Democrats trying to mobilize public opinion in states where incumbent Republican senators face tight reelection challenges. It’s one the few avenues Democrats have to try to block a Supreme Court nominee in the GOP-controlled chamber.
The White House says Democrats are trying to scare voters. “Despite the refusal by the biased media to acknowledge it, President Trump has repeatedly said he will protect those with preexisting conditions,” spokesman Judd Deere said in a statement.
Back in 2017, failed Republican bills that sought to replace the Obama law would have weakened the health law’s protections for people with medical problems, said analyst Larry Levitt of the nonpartisan Kaiser Family Foundation. That GOP legislation had White House backing.
“It’s become like motherhood and apple pie to protect people with preexisting conditions, but there is a big gap in the campaign slogans and what (Republicans) are willing to support,” said Levitt. “President Trump has promised to protect people with preexisting conditions, but has yet to put out a plan to do so.”
The ACA provides coverage to more than 20 million people through a combination of expanded Medicaid and subsidized private insurance. Coverage has grown as people have lost job-based coverage in the coronavirus pandemic.
Although Obamacare is more than 10 years old, it remains politically divisive. In recent Kaiser polling, 49% of Americans viewed the health law favorably, while 42% did not. Yet by 53% to 38%, Americans did not want the Supreme Court to overturn the ACA.
The latest case to threaten the health law rests on arcane arguments.
The lawsuit followed congressional approval of a major tax cut in 2017, which included the reduction of an Obamacare tax on the uninsured to zero. Brought by Texas and other states, the suit argued that without the tax, the health law’s requirement that most Americans carry health insurance was unconstitutional. Therefore, the entire statute must fall.
A federal district court judge in Texas agreed with the Obamacare foes. But an appeals court in New Orleans hesitated to go that far. It struck down the ACA requirement to carry insurance, but sidestepped a decision on the constitutionality of the overall law. The appeals court sent the case back to the district judge to sift through what parts of the law should go or stay. ACA supporters appealed to the Supreme Court.
In written arguments this summer, the Trump administration said that if the health insurance requirement is invalidated, “then it necessarily follows that the rest of the ACA must also fall.” The administration’s brief to the Supreme Court did not mention the coronavirus.
If the high court first hears the case with eight justices and they deadlock 4-4, the court can schedule a new round of arguments when a new justice joins.
But whether Trump is reelected or former Vice President Joe Biden wins in November, the road to lasting health care changes that would improve options for Americans ultimately leads back to Congress.
If Democrat Biden wins the presidency, he’d expand the basic framework of Obama’s law and add a new public health plan. If Trump wins, he’d have another chance to make good on his pre-inauguration promise of “insurance for everybody” that would be “much less expensive and much better.”