Affordable care act survives latest Supreme Court challenge

A seven-justice majority ruled that the plaintiffs had not suffered the sort of direct injury that gave them standing to sue.Credit...Stefani Reynolds for The New York Times
The Affordable Care Act on Thursday survived a third major challenge as the Supreme Court turned aside the latest effort by Republicans to kill the health care law.

The law, President Barack Obama’s defining domestic legacy, has been the subject of relentless Republican hostility. But attempts to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law gained popularity and was woven into the fabric of the health care system.

On Thursday, in what Justice Samuel Alito called, in dissent, “the third installment in our epic Affordable Care Act trilogy,” the Supreme Court again sustained the law. Its future now seems secure.

The margin of victory was wider than in the earlier cases, with six members of the court joining Justice Stephen Breyer’s modest and technical majority opinion, one that said only that the plaintiffs had not suffered the sort of direct injury that gave them standing to sue.

Chief Justice John Roberts, who had cast the decisive vote to save the law in 2012, was in the majority. So was Justice Clarence Thomas, who had dissented in the earlier decisions.

“Whatever the act’s dubious history in this court,” Thomas wrote in a concurring opinion, “we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act — they have not identified any unlawful action that has injured them. Today’s result is thus not the consequence of the court once again rescuing the act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.”

Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett also joined Breyer’s majority opinion. At Barrett’s confirmation hearings last year, Democrats portrayed her as a grave threat to the health care law.

The court did not reach the larger issues in the case: whether the bulk of the law could stand without a provision that initially required most Americans to obtain insurance or pay a penalty.

The plaintiffs — two individuals and 18 states — sought to take advantage of the 2012 ruling, in which Roberts upheld a central provision of the law, its individual mandate requiring most Americans to obtain health insurance or pay a penalty, saying it was authorized by Congress’ power to levy taxes.

The plaintiffs argued that the mandate became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because the mandate could no longer be justified as a tax. They went on to say that this meant the rest of the law must also fall.

Breyer did not address those arguments, focusing instead on whether the plaintiffs were entitled to sue at all.

The two individuals, he wrote, suffered no harm from a toothless provision that in effect merely urged them to obtain health insurance. Similarly, he wrote, the states did not sustain injuries tied directly to the elimination of the penalty that had been part of the individual mandate.

The states argued that the revised mandate would cause more people to take advantage of state-sponsored insurance programmes. Breyer rejected that theory.

“The state plaintiffs have failed to show,” he wrote, “that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.”

“Neither logic nor intuition suggests that the presence of the minimum essential coverage requirement would lead an individual to enroll in one of those programs that its absence would lead them to ignore,” Breyer wrote. “A penalty might have led some inertia-bound individuals to enroll. But without a penalty, what incentive could the provision provide?”

In a vigorous dissent, Alito, joined by Justice Neil Gorsuch, said the third installment of the court’s Affordable Care Act trilogy “follows the same pattern as installments one and two.”

“In all three episodes, with the Affordable Care Act facing a serious threat,” he wrote, “the court has pulled off an improbable rescue.”

Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people — a nearly 70% increase — according to recent estimates from the Urban Institute.

The biggest loss of coverage would have been among low-income adults who became eligible for Medicaid under the law after most states expanded the program to include them. But millions of Americans would also have lost private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

A ruling against the law would also have doomed its protections for Americans with past or current health problems — or preexisting conditions. The protections bar insurers from denying them coverage or charging them more for it.

The new challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the 5th US Circuit Court of Appeals, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

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