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April 28, 2021
US health care reform Health law
Lawrence O. Gostin
Back to The Milbank Quarterly Opinion
The future of the Affordable Care Act (ACA) is on the line at the Supreme Court. Again! For the 3rd time since its enactment in 2010. This term, the Court will decide California v. Texas, challenging the ACA’s minimum essential coverage provision (the “individual mandate”), which requires everyone to have a basic minimum level of health coverage. The Court will decide not only if the mandate is constitutional, but also whether the ACA must fall in whole or part.
The story began in 2012 when a bitterly divided 5-4 majority upheld the constitutionality of the essential coverage provision. Five justices ruled that Congress lacked the power to enact the ACA under the commerce clause. That was always a problematic proposition. After all, health care consumes more than one-sixth of our economy, with data, pharmaceuticals, and supplies crisscrossing the nation constantly. To save the ACA, Chief Justice Roberts used a novel constitutional theory. He upheld the law based on Congress’s power to tax because the individual mandate was enforced through a “shared responsibility” payment to the IRS. That “taxing power” argument never made sense, but it became entirely untenable when in 2017, Congress zeroed-out the penalty, effective January 1, 2019.
Twenty governors (all Republican) then challenged the constitutionality of the individual mandate but went much further. They claimed the mandate was so inextricably tied to key features of the ACA that the whole act was unconstitutional. These key elements of the ACA included widely popular consumer protections such as “guaranteed issue” (insurers must cover all applicants irrespective of pre-existing conditions) and “community rating” (insurers cannot charge higher premiums based on an individual’s health status).
If the Supreme Court rules that the governors have standing to sue (not a sure thing), it will almost certainly strike down the individual mandate. That would be inconsequential because the mandate can’t be enforced now that the tax penalty has been eliminated. But the prospect of the Court striking down the core functions of the ACA would be of huge consequence.
The Court will rely on an arcane legal doctrine called severability, which enables the judiciary to literally excise an unconstitutional provision (the individual mandate), while leaving everything else intact. The guiding judicial principle is whether Congress intended to strike down the whole ACA when it zeroed-out the tax penalty. Additionally, severability requires the Court to determine if the invalid part of a law is so inextricably tied to the rest of the law that the entire act must fall. Even with a steadfast 6-3 conservative majority, the Court is highly likely to save the ACA, yet again.
It’s painfully obvious that Congress had no intent to repeal the ACA when it eliminated the tax penalty. Congress tried hundreds of times to repeal the ACA but never had the votes. When it eliminated the tax penalty, Congress left the rest of the ACA intact, clearly intending the law to function without an enforceable mandate.
And that is exactly what has happened. The Act has continued to protect individuals with pre-existing conditions, kept children on their parents’ health insurance plan until age 26, required no-cost preventive services, and provided premium subsidies for those who can’t afford coverage. In other words, for more than two years after ending the tax penalty, the ACA has continued to operate effectively, and has become even more popular. Even Medicaid expansion has worked well, despite twelve states (all Republican) opting not to expand.
The Court itself has strongly suggested in previous cases that it would be loath to strike down a whole law simply because one of its elements is unconstitutional. The Court’s default is that Congress wants its legislation to be saved. The Chief Justice himself has said, it’s “a scalpel rather than a bulldozer.”
Conservatives have been highly vocal about judicial “activism,” whereby judges substitute their personal views for those of elected officials. Imagine the judicial activism entailed in striking down the major social entitlement of a generation (the ACA) simply because Congress eliminated an already small tax penalty.
To be sure, the individual mandate was an important part of the ACA. It was intended as a sort of “social solidarity”. Since younger, healthier individuals are more likely to forgo health insurance, Congress wanted to ensure they paid their fair share—a cross-subsidy from the younger and healthier to the older and sicker. That social insurance principle still has great value and appeal, but its downfall certainly should not be the death knell of the Affordable Care Act.
If the Court were reckless by striking down the entire ACA, the ramifications would be grave. The Urban Institute estimates that in 2022 alone an additional 21.1 million people would become uninsured, a 69% rise. And as the ACA marketplaces, premium tax credits, and cost-sharing reductions are eliminated, 9.3 million people would lose income-related subsidies. Low and middle-income Americans would lose a vital health care safety net.
Our nation currently is in a fervent and profoundly consequential political and social discussion about the future of health care, especially in light of deep health system failures during the COVID-19 response. The central narrative of the pandemic has been the unconscionable health inequities among population subgroups. The ACA was designed exactly to narrow the health gap between the rich and poor, including narrowing health inequities based on race and ethnicity.
As a nation, we are grappling with weighty decisions like whether to join the rest of high-income countries by guaranteeing universal health coverage (UHC). The key ideas across the range of political discourse include “Medicare for All,” a public option, or simply shoring up the ACA and expanding Medicaid. Politically, the latter is the nation’s most likely course in the short-to-medium-term. None of that can happen so long as our institutions are at political loggerheads. Congress is the best place to forge a national consensus and innovative policy on UHC. Unelected justices, who have been appointed by deeply partisan presidents, most certainly are not the right institution to determine health policy.
The Supreme Court will stop short of striking down the ACA. In the future, it should stop reviewing cases that challenge the ACA, but rather defer to the legislative branch and to a public that overwhelmingly enjoys the protection that the ACA affords.
Lawrence O. Gostin is University Professor in Global Health Law at Georgetown University, faculty director of the O’Neill Institute for National and Global Health Law, and director of the World Health Organization (WHO) Collaborating Center on Public Health Law and Human Rights. He has chaired numerous National Academy of Sciences committees, proposed a Framework Convention on Global Health endorsed by the United Nations Secretary General, served on the WHO Director’s Ad Hoc Advisory Committee on Reforming the WHO, drafted a Model Public Health Law for the WHO and the Centers for Disease Control and Prevention, and directed the National Council of Civil Liberties and the National Association for Mental Health in the United Kingdom, where he wrote the Mental Health Act and brought landmark cases before the European Court of Human Rights. In the United Kingdom, he was awarded the Rosemary Delbridge Prize for the person “who has most influenced Parliament and government to act for the welfare of society.”
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