Upcoming Supreme Court ruling could jeopardize health insurance for people with COVID
Editor’s note (11/9/20): On Tuesday, the Supreme Court will hear oral arguments in the case california vs texas, which will decide whether to uphold a lower court’s decision that the Affordable Care Act is unconstitutional because of the individual’s mandate to purchase health insurance. The decision, which is likely to be several months away, could remove protections for people with pre-existing medical conditions, including COVID-19.
The death of Supreme Court Justice Ruth Bader Ginsburg – and President Donald Trump’s controversial nomination of Amy Coney Barrett for her seat – have raised concerns about how a court with a Conservative majority of six to three will decide an upcoming case in the Affordable could Nursing Care Act (ACG).
The Senate Judiciary Committee is scheduled to vote on Barrett’s confirmation this Thursday. The court will hear on November 10th California vs Texas. This case will determine whether to uphold a lower court’s decision that the Court’s individual mandate to purchase health insurance declares the entire law unconstitutional – or whether the mandate is “severable” from the rest. If the ACA is scrapped as a whole, 20 million people in the US would lose their insurance. Even if it’s partially crushed, up to 129 million could lose protection for pre-existing conditions – including the more than eight million who have had COVID-19. If confirmed before the case goes to trial, Barrett has not pledged that she will vote to uphold the landmark health care law.
Many legal scholars say that the case for scrapping the entire ACA is very weak. But even if the court strips the mandate from most statutes — as Judge Brett Kavanaugh and others have suggested — and only throws out portions of it, that decision could still do significant damage because the ACA is so closely tied to the health care system, a number say by experts. Repealing the law would “throw the nation into economic chaos, on top of people who don’t have health insurance,” says Georges Benjamin, executive director of the American Public Health Association, a professional organization dedicated to public health. “The unintended consequences of even a small manipulation of the ACA could have a huge impact.”
In 2012 the Supreme Court ruled National Association of Independent Businesses against Sebelius that the individual mandate of the Court of Auditors was constitutional because the penalty for non-insurance could be regarded as a tax. But in 2017, Congress passed a tax law that reduced the penalty to $0 as of January 2019. As a result, Texas and other states filed a civil lawsuit alleging the 2018 mandate was unconstitutional. A federal judge in Texas ruled that the individual mandate was unconstitutional and non-separable, making the entire statute unconstitutional — but he didn’t overturn it. The decision was appealed, eventually ending up with the Supreme Court, which is now preparing to hear the case.
A number of different outcomes are possible, according to Katie Keith, part-time research faculty member at the Center on Health Insurance Reforms at Georgetown University and director of consulting firm Keith Policy Solutions. First, the court must determine whether the plaintiffs are entitled to challenge the mandate. “If the answer is no, the case kind of disappears,” she says. Second, it must decide whether the mandate is constitutional or not. “Reasonable minds might disagree,” she says, but the case will be settled even if the mandate is found constitutional. And the last question is whether the mandate is not essential to the rest of the law and can be separated from it. Keith thinks this is the most likely outcome. “We kind of live in this world now,” she says. “The mandate has been zero for two years and the sky hasn’t collapsed.”
Assuming the court decides that the mandate is unconstitutional and severable from some or most other statutes, it would also have to decide which parts to retain. Justices Kavanaugh and John Roberts supported the notion of separability in a previous case. This suggests they could vote to scrap the mandate while leaving most of the ACA intact, Keith says. Still, she worries some parts of the law could still be scrapped – including, very importantly, the requirement that insurance companies cover pre-existing conditions. This decision could affect millions of Americans who now have or have previously had COVID-19. Although most cases of the disease are mild, there have been numerous reports of symptoms lasting months after infection, as well as heart and lung damage.
COVID is “not an acute episodic illness — it’s got a long tail,” so it could easily qualify as a pre-existing condition, says Benjamin, who was formerly secretary of the Maryland Department of Health and Mental Health, a position in which he oversaw its expansion of the state Medicaid program. “I would guess [COVID is] a chronic condition.” But he claims that if the court’s judges cared about access to health care, “they would care about the 20 million people who would lose their health insurance” if the ACA were struck down.
Although Barrett was clear about how she might rule in a particular case, she has criticized the court’s 2012 decision upholding the ACA. “Obviously the future of the ACA [would be] less safe with Judge Barrett in court than with Ginsburg,” says Tim Jost, professor emeritus at Washington and Lee University School of Law. “We don’t know much about Barrett’s views on severability. It’s kind of a blank slate.”
The plaintiffs’ argument that the Court of Auditors is completely dependent on the individual mandate is “absurd – it is factually incorrect,” says Jost. “The court should look at what Congress thought in 2017” when it reduced the mandate penalty to zero. He makes it clear that senators and lawmakers have no intention of scrapping the law entirely. “If it matters what Congress thinks, [the court] should not overrule the law,” he adds. But Barrett sees herself as a textualist, someone who believes that laws and the Constitution should be interpreted strictly in terms of the words used in them. “The problem with textualists,” says Jost, “is that they believe ‘the law means what I say it means.'”
The ACA is an extremely complex healthcare law, and it would be incredibly disruptive to get rid of even parts of it — especially in the midst of a pandemic. “Anything can happen,” says Keith. “There is absolutely room for [the court] Attack parts of the ACA and cause havoc.”
Read more about the Coronavirus outbreak from Scientific American here. And read the reports from our international magazine network here.