Will Obamacare be a thing of the past? It’s possible.
On Tuesday, November 10, the Supreme Court will hear yet another lawsuit attempting to overturn the Affordable Care Act and purge 20 million people off of insurance. The lawsuit is particularly concerning for health care access advocates because of the recent confirmation of Justice Amy Coney Barrett, who has been critical of the constitutionality of the ACA.
The addition of Barrett to the court could lead to a ruling that might strike the law down as unconstitutional. But for that to happen, the suit has to overcome a few arguments in favor of dismantling the ACA. So, will the ACA be overturned, who could be affected, and why does it matter to families?
What is the lawsuit, exactly?
The suit is being brought to the court by Republican state officials in Texas representing 18 red states. The lawsuit asks that the court rules that the ACA’s requirement hinges on the individual mandate, AKA that all Americans obtain some form of health insurance or pay income tax penalties, is unconstitutional and that the entire law should be thrown out as a result.
But isn’t the individual mandate already ruled out, you ask? Sort of. When the law was upheld in 2012 based on the same legal challenge and Chief Justice John Roberts argued that the individual mandate is part of Congress’ authority to levy taxes. As a work-around, Republicans set the tax penalty at zero in 2017, which is the basis of tomorrow’s lawsuit.
Republicans led by Texas are arguing that because the tax penalty is now at zero, the ACA does not have an individual mandate tax, and therefore, the law hinges on an unconstitutional requirement that all Americans get health insurance. Democrats in blue states led by California are basically arguing the opposite — that because the tax penalty is now at zero, there is no individual mandate, and so the law is not unconstitutional, and should therefore be upheld because no one is effectively penalized for not getting health insurance.
However, if the individual mandate is ruled unconstitutional, that doesn’t mean that the entire ACA will be overturned as a result of the lawsuit. Even if the mandate is unconstitutional, the other parts of the ACA have been churning along just fine without an individual mandate and could mean the rest of the law will stand.
Who would be affected by it being overturned, if the lawsuit is successful?
If the lawsuit is overturned, 20 million Americans could be booted from their insurance, which would be a disaster amid a pandemic that has sickened 10.1 million Americans and killed more than 230,000 of them. Low-income adults in red states who became eligible for Medicaid under the ACA-fueled expansion of Medicaid in red states would be the largest groups of people who lose their health care. But young adults who were allowed to stay on their parent’s insurance until they turn 26 would also be unceremoniously booted from health insurance if the law is overturned. Families who qualify for ACA-powered subsidies will also lose access to them and become unable to afford their health insurance.
Those who are protected under private insurance who have pre-existing conditions will no longer be protected by the ACA law that made it illegal for insurers to deny them health insurance. This is millions and millions and millions of Americans who might have a chronic illness, have had cancer, have diabetes. It would be a disastrous policy.
Will it be overturned, and if it is, what will happen?
Right now, it’s hard to say. But if the law is overturned, Congress can still try to save it, by changing the individual mandate to $1, or by getting rid of the mandate part of the law altogether legislatively. These would nullify legal challenges against the ACA. But that would require a Senate willing to cooperate with Democrats — and in the meantime, millions of Americans could be uninsured overnight, an abandonment at the height of a deadly pandemic.