WASHINGTON – The Trump administration asked the Supreme Court on Thursday to strike down the Affordable Care Act, escalating a long-running battle over former President Barack Obama’s signature health care law that could cause millions of Americans to lose their health insurance.
The administration filed a brief with the court just before a midnight deadline, throwing its weight behind a case brought by Texas and 17 other Republican-led states that argue the law became unconstitutional when Congress eliminated the tax penalty meant to enforce the “individual mandate” to buy insurance.
With the country already in the grip of COVID-19, the move puts a spotlight on health care issues and hands Democrats a potent talking point ahead of November’s election.
“A Republican victory in this lawsuit would be an American catastrophe,” Sen. Patty Murray, D-Wash., said in a statement Friday. “If President Trump gets his way, tens of millions of people will lose their health care in the middle of a global pandemic, families’ health care costs will skyrocket just as unemployment is doing the same, and communities of color will suffer even more as the health disparities already exacerbated by COVID-19 become even worse.”
An analysis published Wednesday by the left-wing Center for American Progress estimated that 23.3 million people, including 99,000 Idahoans and 654,000 Washingtonians, would lose insurance coverage if the lawsuit succeeds. It could also remove requirements that insurers guarantee coverage for preexisting conditions and cover the cost of vaccinations.
Republicans have long opposed the law, often called “Obamacare,” on the grounds that it gives government too much control in private insurance markets.
The individual mandate has been another frequent target of the GOP’s ire.
“Health care must be affordable and accessible,” Rep. Russ Fulcher, R-Idaho, said in a statement Friday. “Unfortunately, the ACA requires consumers to buy health plans that include 10 Essential Health Benefits – whether they need them or not – dramatically raising the consumers’ premiums and deductibles. Additionally, the individual mandate adds a tax that many families cannot afford. Both of these provisions need to be eliminated and I hope to see the Supreme Court take action.”
That tax penalty, which congressional Republicans eliminated in 2017, has not existed since 2019. The Affordable Care Act has been the target of dozens of lawsuits since Obama signed it into law in 2010, and the current challenge is the third time its fate has come before the nation’s highest court. In a 2012 decision, Chief Justice John Roberts joined the court’s four liberal justices to uphold the law, ruling that the penalty used to enforce the individual mandate was a tax, which the Constitution gives Congress the power to impose.
At the same time, the court effectively made another part of the law, its expansion of Medicaid coverage, optional for states. Both Washington and Idaho have expanded Medicaid, but 14 states, mostly in the South, have not.
After the GOP, which then controlled both the House and Senate, reduced the tax penalty to zero, it gave Obamacare opponents an opening: The 18 states argued that because the penalty was now zero dollars it could no longer be considered a tax, and was therefore unconstitutional. That curious logic has drawn criticism from even conservative legal scholars, and Attorney General Bill Barr and Health and Human Services Secretary Alex Azar have reportedly argued against it privately.
Nevertheless, a federal judge in Texas ruled in favor of the plaintiffs, and in December 2019 the Fifth Circuit Court of Appeals concurred, sending the case to the Supreme Court. Rep. Cathy McMorris Rodgers, R-Spokane, said at the time the appeals court had made the right decision and warned of some Democrats’ plans to take government control of health care even further.
“It’s frightening that Democrats are doubling down on policies like Medicare for All that will lurch America towards socialized medicine with a complete government takeover of our healthcare system,” she said in a statement. “To win the future, we need health care solutions that bring down costs, create price transparency, improve care and choice, and enhance access to new cures and treatments.”
Obamacare has also drawn fire from the progressive wing of the Democratic Party, but it has gained popularity since it was passed in 2010.
A February survey by the Kaiser Family Foundation found 55 % of adults had favorable views of the law, up from 35 % in February 2014. Democrats are banking on that giving them an advantage in November.
At a campaign event in Pennsylvania on Thursday, presumptive Democratic presidential candidate Joe Biden warned that if the law is overturned, survivors of COVID-19 could lose their coverage or have the disease treated as a preexisting condition. In a statement Friday, Sen. Maria Cantwell, D-Wash., echoed that line of attack.
“The Trump administration is trying to dismantle the ACA and its protections for people with preexisting conditions, many of whom are most at risk from COVID-19,” Cantwell said. “Attempting to take away health care options during a pandemic that has left millions of Americans out of work and in need of an alternative to employer-based health insurance is dangerous and unconscionable.”
Washington Attorney General Bob Ferguson joined other Democratic state attorneys general to sue to defend the law, and in January 2019 House Democrats introduced a resolution to join in the legal effort, forcing Republicans to go on the record with their stance. McMorris Rodgers and her fellow Republican Reps. Dan Newhouse of Sunnyside and Jaime Herrera Beutler of Camas all opposed the resolution, as did Fulcher.
The court will consider three questions. First, the justices will decide whether any of the plaintiffs have “standing” to sue, which would mean finding that they were harmed in some way by not having to pay a tax penalty for not having insurance. Then court would decide whether the individual mandate – or the toothless version of it that remains without any penalty – is unconstitutional. If so, the justices could then decide to either strike down the whole law or to let other parts of it, such as the Medicaid expansion, stand.
The court will review the case in its fall term, possibly in the weeks before the Nov. 3 general election, and it’s sure to be a focus of Democrats in the coming months. The court’s decision would likely not come until spring or summer of 2021, and the law will remain in effect at least until then.
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