A majority of U.S. Supreme Court justices seemed unwilling to invalidate the Affordable Care Act (ACA) based on their comments and questions during two hours of arguments before the high court Tuesday morning. At risk is a law that AARP and other advocates say is a vital health care lifeline for millions of Americans, especially during the COVID-19 pandemic.
The back-and-forth discussion over the law centered mostly on the impact of Congress’ 2017 decision to zero out the penalty on taxpayers who failed to abide by the ACA’s individual mandate requiring most Americans to have health insurance. At issue was whether zeroing out that penalty rendered the whole ACA unconstitutional.
“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down, when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Chief Justice John Roberts said to Kyle Hawkins, the Texas state solicitor general, who argued on behalf of those asking the court to strike down the ACA. “I think, frankly, they wanted the court to do that. But that’s not our job.”
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The case challenging the constitutionality of the ACA was originally brought by Texas, 18 other states and two individuals. In December 2019, the Court of Appeals for the Fifth Circuit ruled that the individual mandate was unconstitutional. It sent the rest of the lawsuit back to the lower district court, ordering it to review each provision of the ACA to determine if those other provisions could be separated from the mandate and remain intact. AARP and the AARP Foundation joined 17 states and many other advocacy organizations in asking the high court to overturn that ruling.
“The Justices seemed skeptical that an individual mandate without a penalty supports a challenge to the ACA,” said William Rivera, senior vice president for litigation at the AARP Foundation. “And to the extent that it does, they struggled to see why the rest of the statute could not survive without the mandate. Either way, we are hopeful that the challenge will fail.”
Should law be kept intact?
A key element of the case revolves around the concept of “severability,” a legal term that means that if one element of a law is found to be unconstitutional, the rest of the law can still stand. Justice Brett Kavanaugh indicated in his comments Tuesday that he believes even if the individual mandate is deemed unconstitutional, that doesn’t invalidate the entire law.
“Congress knows how to write an inseverability clause, and that is not the language that they chose here,” Kavanaugh said. He also said that his reading of what lawmakers did in 2017 when they zeroed out the mandate penalty was that they “wanted to preserve protections for coverage for people with preexisting conditions.”
Justice Samuel Alito compared the individual mandate to a part of an airplane. In the first case that challenged the constitutionality of the ACA, Alito said, “there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying,” and that if that part were taken out, “the plane would crash.” But now, Alito said, “the part has been taken out and the plane has not crashed.”
In the first major challenge to the ACA, in 2012, Alito voted to strike down the law while Roberts provided the deciding vote to uphold it. Kavanaugh was not on the high court when that case was decided.
A decision to invalidate the ACA would be “catastrophic,” Nancy LeaMond, AARP executive vice president and chief advocacy and engagement officer said earlier this year when AARP and the AARP Foundation, along with the Center for Medicare Advocacy and Justice in Aging, filed a brief with the high court urging that the health law be maintained. “Over the last decade, the Affordable Care Act has helped millions of Americans become healthier and more financially secure. It helps ensure people have access to health insurance when they need it most and stabilizes our health care system at a time of crisis.”
The open enrollment period for the health care marketplaces established by the law began on Nov. 1 and ends Dec. 15. Experts have said that the justices are not expected to rule on the case being argued Tuesday until next spring, and they have urged Americans to sign up for coverage or, if they already have an ACA plan, to review their plan and make sure it still meets their needs and is affordable. About 11 million people get their health care through the ACA marketplaces.
ACA includes vital coverage
In their brief urging that the law be maintained, AARP and the AARP Foundation said overturning the ACA would be chaotic for millions of Americans who rely on it for their health care. The brief outlined the myriad ways the American health care system would be disrupted and how two vital programs — Medicare and Medicaid — would be harmed if the law were invalidated:
- Medicare: The program’s more than 62 million beneficiaries would lose the law’s free preventive services and the provisions that help expand the financial viability of the program.
- Loss of health care coverage: More than 20 million people would lose health care coverage, including 13 million people who are now covered as a result of 38 states and the District of Columbia expanding their Medicaid programs.
- Preexisting conditions: Insurers would no longer be prevented from charging people with preexisting conditions higher premiums or refusing to insure them. More than 100 million Americans are estimated to have one or more preexisting conditions.
- Age tax: If the law were invalidated, insurers would again be allowed to charge older adults premiums that are more than triple what they charge younger policyholders, simply because of their age.
- Adult children: Children under the age of 26 would no longer be guaranteed coverage under their parents’ health insurance policies.
- Long-term care: Increased quality and safety improvements in nursing homes and other long-term care facilities would no longer be guaranteed.
While AARP and the AARP Foundation continue to urge the Supreme Court to find the entire law constitutional, they argue that even if the justices find the individual mandate provision unconstitutional, the rest of the ACA should remain intact.
“Congress did not intend this catastrophic result when it reduced the tax penalty in the Tax Cut and Jobs Act of 2017,” says the AARP and AARP Foundation brief. “The ACA has withstood the test of time and continues to operate as Congress intended, even with a zeroed-out penalty.”
Editor’s note: This story has been updated to reflect the latest developments.