CHARLESTON, W.Va. — The U.S. Supreme Court on Tuesday will hear oral arguments regarding former President Barack Obama’s health care law, more than two years after Republican state attorneys general launched their legal challenge on the statute’s constitutionality.
The court has scheduled arguments in which 18 states — including West Virginia — and the U.S. Department of Justice contend “Obamacare” is unconstitutional because of the reduction of the individual mandate to $0.
If the Supreme Court rules to end the entire law, it would end protections for covering preexisting conditions and funding states receive for Medicaid coverage.
The lawsuit can be traced to the Republican-controlled Congress failing to repeal “Obamacare” in 2017. One effort, a “skinny repeal,” would have revoked the penalty for not purchasing health insurance and left 16 million Americans uninsured by 2026.
When President Donald Trump and Congress approved the Tax Cuts and Jobs Act in December 2017, legislators included zeroing out the health care law’s individual mandate in the bill. The Republican attorneys general launched the legal effort in February 2018, saying the reduction made “Obamacare” unconstitutional. Twenty states were originally involved in the lawsuit; Wisconsin and Maine withdrew following the 2018 elections.
A federal judge in Texas struck down the individual mandate and “Obamacare” in December 2018. The 5th U.S. Circuit Court of Appeals ruled the following December the provision is unconstitutional but asked the lower court to review which parts of the law can be severed from the individual mandate.
Twenty-one Democratic attorneys general and the U.S. House of Representatives are defending the law, saying the reduction of the individual mandate made the provision alone inoperative.
“It’s not clear to me that this Supreme Court challenge has any other goal besides undoing the Affordable Care Act through the courts when it couldn’t be undone through Congress,” said Valarie Blake, a West Virginia University College of Law professor whose research includes “Obamacare” and other health care issues.
The Supreme Court in June 2012 upheld “Obamacare” in a 5-4 verdict, in which Chief Justice John Roberts wrote the individual mandate is constitutional as a tax. Blake said the core issue in the current case is if the provision is severable from the rest of the law.
“Most people think there is little leg to stand on in striking down the entire law,” she added. “The law tends to suggest — and even the more conservative justices have suggested — that severability is a scalpel, not a sledgehammer, and that justices should not undo the work of Congress dramatically. When there’s a law that should be preserved, they should preserve it.”
Under “Obamacare,” insurance providers cannot deny or charge more for coverage because someone has a preexisting condition. Insurers also are prohibited from limiting benefits.
The Kaiser Family Foundation stated in an October 2019 report around 37% of non-elderly West Virginians — 382,000 people — have a preexisting condition that would not be covered before the health care law.
West Virginia is one of 38 states and Washington, D.C. that expanded Medicaid. According to the West Virginia Department of Health and Human Resources, 184,109 people have insurance coverage because of the expansion.
People who live in states that expanded Medicaid have more opportunities to access health care services, including treatment for opioid addiction. States also receive funding to cover 90% of costs related to the action.
“Again, the effects come back to the Medicaid expansion and the significant increase in coverage and the availability of that coverage for individuals who would have otherwise been uninsured and really would have had fairly limited access to treatment services,” Jennifer Tolbert, Kaiser Family Foundation’s director for state health reform, told MetroNews in September.
The federal government additionally provided around 9.2 million Americans — including 16,536 West Virginians — a premium tax credit in February to purchase health insurance.
The health care law has allowed coal miners and their spouses to receive health care benefits quicker and permitted adults under the age of 26 to remain on their parent’s health insurance plan. “Obamacare” also prohibits insurance providers from discriminating against patients because of race, age, gender identity or disability.
West Virginia Attorney General Patrick Morrisey has defended his involvement in the lawsuit; he faced criticism during this year’s general election contest from Democratic candidate Sam Petsonk about the legal challenge’s possible consequences.
“I have watched over the last decade as hundreds (of) thousands of West Virginians have received health insurance because of the federal law that Morrisey is trying to take away right now,” said Petsonk, who previously worked under Sens. Robert Byrd and Carte Goodwin.
Morrisey said his involvement is aimed at lowering premiums. He told MetroNews last month he thinks the Supreme Court will strike down the individual mandate but — like the federal appellate court — ask a lower court to determine severability.
“All these people that are predicting gloom and doom and the demise of health care, they’ve just been playing politics,” he said.
The attorney general has also stated he supports ensuring insurance coverage for people with preexisting conditions. He pushed a proposal during this year’s legislative session forcing insurance companies to cover preexisting conditions if “Obamacare” is not in effect, but state lawmakers did not pass the bill.
Morrisey defeated Petsonk to win a third term in office.
The Republican attorneys general stated their support for the 2018 decision ending “Obamacare” in an August brief to the Supreme Court.
“The district court properly applied this Court’s cases to declare the Affordable Care Act’s major and minor provisions invalid and unenforceable nationwide,” they wrote.
“The ACA’s text includes an inseverability clause that repeatedly declares the unconstitutional mandate ‘essential’ to the broad reforms the ACA set out to achieve. When Congress declares a statutory provision ‘essential,’ this Court takes Congress at its word. That is all the more true here, where Congress amended the ACA in 2017 and had the opportunity to remove the inseverability clause, but chose not to. And there is no basis to cabin the geographic reach of the conclusion that the ACA’s major and minor provisions fall with the unconstitutional mandate.”
While the president has spoken multiple times about a replacement health care plan, he has not put forward a proposal. Trump has shared support for protecting coverage of preexisting conditions.
Blake stressed there is not a backup plan to “Obamacare.”
“The best that we have right now is the Affordable Care Act,” she said. “Most proposals that would protect people with preexisting conditions tend to look even more liberal than the Affordable Care Act. It’s just not clear to me what the end game is for Republicans if they want to roll back the Affordable Care Act but they also say they’ll protect people with preexisting conditions.”
U.S. Sen. Joe Manchin, D-W.Va., made the lawsuit part of his 2018 re-election effort, in which he defeated Morrisey. Manchin additionally has tried to get the Senate Legal Counsel involved in the legal proceedings and the Justice Department to defend the law.
“With the Affordable Care Act, it’s not perfect but it can be a lot better if we work together and not try to throw it out. And that’s what he wants to do,” Manchin said last week at a get-out-the-vote event in Charleston, referencing Morrisey.
President-elect Joe Biden defended the health care law during his campaign and pitched building on “Obamacare” with a public option government plan.
“I think there’s a lot he can do in the aftermath to stabilize the market with agency action to try to make sure people are getting access to care within the law,” Blake said. “At the same time, much of this is going to come down to a congressional response.”
Democrats will likely maintain control of the House of Representatives once election results are official, but control of the Senate will not be clear until North Carolina and Alaska election officials finish counting votes and runoff elections in Georgia take place in January.
Manchin told reporters on Friday he hopes Republicans and Democrats can work together on improving health care.
“We can fix the high rates that people are paying in premiums with big deductions. We can fix all of that if we work together finally,” he said. “It’s time. It’s been a decade now, so let’s get together.”
The “Obamacare” case will also be one of the first for Justice Amy Coney Barrett; the Senate confirmed Barrett’s nomination to the nation’s highest court last month in a 52-48 vote. Sen. Shelley Moore Capito, R-W.Va., supported confirming Barrett while Manchin voted against. Both senators met Barrett before the vote.
Barrett previously served on the 7th Circuit Court of Appeals. Her confirmation gives conservative justices a 6-3 majority.
Barrett, who filled the vacancy left after Justice Ruth Bader Ginsburg’s death, has criticized the Supreme Court’s 2012 and 2015 decisions upholding the law. She said in a 2017 academic article that Roberts’ 2012 opinion “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
When questioned by Democrats on the Senate Judiciary Committee about how she would rule on the health care law, Barrett said she will review each case from a legal perspective.
Manchin cited Barrett’s writings and uncertainty about the presidential election as reasons Senate Republicans pushed confirmation ahead of Election Day.
Capito told reporters people should not be worried about losing their insurance coverage.
“To me, that’s a political scare tactic that I really think does a disservice to the process and really concerns a lot of people,” the senator said on Oct. 26. “She’s going to consider each case that comes before her individually, impartially and in the context of precedent and the Constitution.”
Blake said while Barrett is on record opposing decisions keeping “Obamacare” in place, it is not evident it is related to the current case.
“Now, the legal question is whether really or not the individual mandate is functioning as a tax, not whether Roberts was right to call it a tax,” she explained. “What would be more helpful is if we knew what she thought about the question of severability and what she thought about to what extent should we preserve a law when some piece of it is deemed unconstitutional.”
Those positions, Blake noted, have not been shared in writings or public comments.
“We can kind of generally assume she may not be favorable to the Affordable Care Act and may think some of these opinions were wrongly decided in the past, but really the heart of the matter is will she go so far to strike down the entire law based on severability,” she added. “That would be an extreme stance.”
Blake said Barrett’s questions on Tuesday could give clues about the justice’s possible decision.
“That might give us a little bit of an indicator where her mind is at when she goes to make her decision in a couple of months,” Blake said.
The arguments will take place as open enrollment for insurance coverage is underway. The enrollment period goes through Dec. 15.