Ruling by a decisive 7-2 margin, in what dissenting Justice Samuel Alito described as the third in “our epic Affordable Care Act trilogy”, the Supreme Court rejected the latest—and likely the last—effort to overturn the 2010 health reform law. Holding that the states and individuals that brought the latest challenge to the law did not have “standing”—the legal right to sue—the high court effectively closed the book on a decade-long series of challenges to the Affordable Care Act (ACA). Those efforts have included two previous Supreme Court cases, numerous promises to “repeal and replace” Obamacare, and the neutering of the law’s “individual mandate” to buy health insurance, which led to this latest case, Texas v. California.
At issue in the case was whether, by zeroing out the penalty for not purchasing insurance, Congress effectively removed the ACA’s status as a taxation measure, which the Court had previously held as central to the constitutionality of the law. In Alito’s dissenting opinion, the full implications of the issue are laid out: in his view, by invalidating the mandate, Congress rendered the entire law unconstitutional, meaning that it should be overturned. But a majority of seven Justices, including Kavanaugh and Barrett (both appointed by President Trump) disagreed, joining Justice Breyer in his opinion thatno harm had been done to the states that brought the suit, and ordering that the case be returned to the lower court for dismissal.
More than ten years after the passage of the ACA, it now (finally) seems as though the law is here to stay. Bolstering its central provisions—subsidized individual insurance coverage, expanded Medicaid benefits, protections for those who purchase insurance—is a centerpiece of the Biden administration’s policy program, featured first in the American Rescue Plan Act, and now in the recovery legislation currently being debated. Republicans, who had long opposed the ACA, barely mentioned it during the last presidential campaign, instead turning their focus to thwarting Democrats’ plans to expand coverage by lowering the Medicare eligibility age or implementing a government-run “public option”.
Given the evenly split makeup of the Senate, however, we continue to believe the greatest hurdle such proposals will face is not Republican opposition, but reluctance on the part of conservative Democrats, like Sen. Joe Manchin (WV), whose votes will be needed for any legislation to pass.
With the Supreme Court calling a third strike against challenges to the ACA, and the new administration eager to advance its other priorities (infrastructure, childcare, jobs), for the first time in over a decade, we might just be in for a period of relative calm on the healthcare policy front.
In what has become something of a Washington tradition, the Supreme Court again upheld the Affordable Care Act on Thursday, in the third major case from Republican challengers to reach the high court.
The margin this time was larger, 7-2, as the High Court appears less and less interested in revisiting the health care law through the judiciary.
Democrats hailed the ruling as a boost to their signature law, and Republicans were left to figure out a path forward on health care amid another defeat.
Here are five takeaways:
This could be the last gasp of repeal efforts
It is impossible to ever fully rule out another lawsuit challenging the health law or another repeal push if Republicans win back Congress.
But after more than 10 years of fighting the Affordable Care Act, GOP efforts at fighting the law are seriously deflated, as many Republicans themselves acknowledge.
“It’s been my public view for some time that the Affordable Care Act is largely baked into the health care system in a way that it’s unlikely to change or be eliminated,” said Sen. Roy Blunt (Mo.), a member of Senate GOP leadership.
Asked if he still wanted to repeal and replace the law, which was the GOP rallying cry for years, Sen. Chuck Grassley (R-Iowa) said instead, “I think I want to make sure it works,” before attacking former President Obama’s promises about the law’s benefits.
Even Sen. Josh Hawley (R-Mo.), who helped bring the lawsuit against the health law as attorney general of Missouri, said Thursday that the Supreme Court had made clear “they’re not going to entertain a constitutional challenge to the ACA.”
Supporters of the law said it is now even more entrenched, despite years of GOP attacks.
“The war appears to be over and the Affordable Care Act has won,” said Stan Dorn, senior fellow at the health care advocacy group Families USA.
Still, not all Republicans are throwing in the towel on at least verbally attacking the law.
“The ruling does not change the fact that Obamacare failed to meet its promises and is hurting hard-working American families,” said House GOP leaders Kevin McCarthy (Calif.), Steve Scalise (La.) and Elise Stefanik (N.Y.).
And there is at least one ACA-related lawsuit still working its way through the lower courts. Kelley v. Becerra challenges provisions of the health law around insurance plans covering preventive care including birth control.
Through the three major Supreme Court cases on ObamaCare, the margin of victory has risen from 5-4 to 6-3 to 7-2.
“There’s a real message there about the Supreme Court’s willingness to tolerate these kinds of lawsuits,” Andy Pincus, a visiting lecturer at Yale Law School, said of the growing margin of victory.
The case was decided on fairly technical grounds. The Court ruled that the challengers did not have standing to sue, given that the penalty for not having health insurance at the center of the case had been reduced to zero, so it was not causing any actual harm that could be the basis for a lawsuit.
Republicans did get some vindication in that Democrats had fiercely attacked Barrett during her confirmation hearings for being a vote to overturn the health law, when in fact she ended up voting to maintain the law.
The ACA is stabilizing
The early years of the Affordable Care Act were marked with the turbulence of a website that failed at launch, premium increases, and major insurers dropping out of the markets given financial losses.
Now, though, the markets are far more stable. For example, 78 percent of ACA enrollees now have the choice of three or more insurers, up from 57 percent in 2017, according to the Kaiser Family Foundation.
Democrats, now in control of the House, Senate and White House, were able to pass earlier this year expansions of the law’s financial assistance to help further bring down premium costs.
The Biden administration announced earlier this month that a record 31 million people were covered under the ACA, including both the private insurance marketplaces and the expansion of Medicaid.
“We are no longer in the Affordable Care Act, ‘How’s it going to go? Is it going to survive?’ mode,” said Frederick Isasi, executive director of Families USA. “We really are in a whole new phase. It really is: ‘How do we improve it?’”
Republicans face questions on their health care message
The Republican health care message for years was summed up with the simple slogan “repeal and replace.”
But now those efforts have failed in Congress, in 2017, and have failed for a third time in the courts.
That leaves uncertainty about what the Republican health care message is. The party has famously struggled to unite around an alternative to the ACA, so there is no consensus alternative for the party to turn to.
The statement from McCarthy, Scalise, and Stefanik calling the ACA “failed,” shows that party leaders are not fully ready to accept the law.
The leaders added that “House Republicans are committed to actually lowering health care costs,” which has been a possible area for the party to focus that is not simply about repealing the ACA.
But any discussion of health care costs is fraught with complications. Republicans, for example, overwhelmingly oppose House Democrats’ legislation to allow the government to negotiate lower drug prices, arguing it would harm innovation from the pharmaceutical industry.
Grassley reached a bipartisan deal on somewhat less sweeping drug pricing legislation with Sen. Ron Wyden (D-Ore.) in 2019, but that bill went too far for many Republicans as well.
Democrats want to go farther, but face an uphill climb
With the ACA further entrenched, and control of the House, Senate and White House, Democrats are looking at ways to build on the health law.
The main health care proposal from the presidential campaign, a government-run “public option” for health insurance, has faded from the conversation and is not expected to be a part of a major legislative package on infrastructure and other priorities Democrats are pushing for this year.
While the health care industry has largely made its peace with the ACA, pushing for a public option or lowering health care costs means taking on a fight with powerful industry groups.
Progressives like Sen. Bernie Sanders (I-Vt.) have instead poured their energy into expanding Medicare benefits to include dental, vision, and hearing coverage, and lowering the eligibility age to 60.
Allowing the government to negotiate lower drug prices also could make it into the package.
“Now, we’re going to try to make it bigger and better — establish, once and for all, affordable health care as a basic right of every American citizen,” said Senate Majority Leader Charles Schumer (N.Y.). “What a day.”
The Supreme Court on Thursday issued an opinion upholding the Affordable Care Act by a 7-2 vote, allowing millions to keep their insurance coverage amid the coronavirus pandemic.
In the decision, the court reversed a lower court ruling finding the individual mandate unconstitutional. However, the court did not get to the key question of whether the individual mandate is severable from the rest of the law. Instead, the court held the plaintiffs do not have standing in the case, or a legal right to bring the suit.
Justice Stephen Breyer wrote the opinion while Justices Samuel Alito and Neil Gorsuch filed dissenting opinions.
Breyer wrote that a court must address a plaintiffs’ injuries. But Breyer found there were no injuries, so he asked: “What is that relief? The plaintiffs did not obtain damages.” Breyer added, “There is no one, and nothing, to enjoin.”
A wide swath of industry cheered Thursday’s news.
The American Medical Association called it a victory for patients, so too did America’s Essential Hospitals, a safety net trade group that called it a win. The American Hospital Association said the more than 30 million of Americans who obtained coverage from the law can “breathe a sigh of relief.”
Millions of Americans gained health insurance coverage as a result of the Affordable Care Act, President Barack Obama’s landmark law passed in 2010 and reshaped virtually every corner of American healthcare. The latest challenge threatened to undo coverage gains under the law that helped drive down the uninsured rate to a record low.
Proponents feared the law was in greater jeopardy following the death of Supreme Court Justice Ruth Bader Ginsburg, part of the court’s liberal wing, which shrunk to just three of a total of nine justices without her.
Those fears now seem to be overblown. Chief Justice John Roberts joined the courts liberals in upholding the law, as did two of President Donald Trump’s Supreme Court picks, Justices Brett Kavanaugh and Amy Coney Barrett.
In a rare move, Trump’s DOJ declined to defend the ACA, when the challenge was brought by a group of red states and two men with marketplace plans. Former California Attorney General Xavier Becerra, now HHS secretary, led a group of blue states to defend the law in federal court.
Recap of the controversial case
The case centers on the individual mandate, the part of the law that compelled Americans to purchase health insurance or pay a fee. The framers of the ACA believed the mandate would help drive healthy people to ensure they weren’t just filled with sick people, risking higher costs and adverse selection for insurers.
Congress effectively killed the mandate in 2017 by setting the penalty to $0.
The plaintiffs’ legal argument was strategic. They directly targeted the linchpin that saved the law in 2012. The Supreme Court largely upheld the ACA in 2012 when it ruled the mandate could be considered a tax and therefore was constitutional. Roberts infuriated conservatives by siding with liberals in that case.
Take that penalty away, by zeroing it out, and the plaintiffs argue the law is no longer constitutional because it can no longer be considered a tax if no money is collected.
The key question before the Supreme Court was whether they could simply pluck the individual mandate from the remainder of the monumental health law,throw the entire law out or find some middle ground.
The plaintiffs have argued that the individual mandate is so intertwined and closely linked to the rest of the law that the entire piece of legislation must fall if the individual mandate is ruled unconstitutional.
Before arriving at the Supreme Court, a lower court ruled in 2019 the mandate was unconstitutional but sent back the key question of whether the mandate could be extracted from the remainder of the law back to the district court. The federal appeals court ruling by a three-judge panel came down along party lines: two Republicans and one Democrat.
A question of standing
Some legal experts have criticized the challenge because the individual plaintiffs, two Texas men, no longer face any financial penalty if they were to forgo coverage. SCOTUS’ ruling agrees with that logic.
The two men joined the case originally brought by a group of red states. Legal experts said it would have been harder for the group of red states to prove an injury than the two men, John Nantz and Neill Hurley.
The word standing was mentioned at least 59 times, according to the court’s transcript of the hearing, outnumbering other key words such as severability, another important legal concept in the case.
In one now-telling exchange from oral arguments, Gorsuch seemed confused over the premise of the challenge to begin with: “I guess I’m a little unclear who exactly they want me to enjoin and what exactly do they want me to enjoin them from doing?”
The U.S. Supreme Court is heading into the last month of its current term with one major healthcare case, the move to invalidate the ACA, yet to be decided, The New York Times reported June 1.
A coalition of Republican-leaning states, led by Texas, have asked the court to strike down the ACA, signed into law in 2010. The states argue that the entire ACA is invalid because, in December 2017, Congress eliminated the law’s tax penalty for failing to purchase health insurance. The states argue that the individual mandate requiring Americans to gain health insurance or pay a penalty is inseparable from the rest of the law and became unconstitutional when the tax penalty was eliminated.
The Supreme Court heard oral arguments in the case in November, and at least five Supreme Court justices indicated support for not striking down the entire ACA.
The court is expected to rule on the matter before its nine-month term ends at the end of June, Reuters reported.
Average benchmark premiums for plans on the Affordable Care Act’s exchanges have fallen for the third straight year, according to a new analysis.
Researchers at the Urban Institute, a left-leaning think tank, found that the average benchmark premium on the exchanges fell by 1.7% for 2021. That follows decreases of 1.2% in 2019 and 3.2% in 2020.
By contrast, premiums for employer-sponsored plans increased by 4% in both 2019 and 2020, according to the report. Data for 2021 on the employer market are not yet available, the researchers said.
The national average benchmark premium was $443 per month for a 40-year-old nonsmoker, according to the report, before accounting for any tax credits.
The researchers found much significant variation in premium levels between states, though the difference in growth rates was smaller. Minnesota reported the lowest average benchmark premium at $292 per month, and the highest was in Wisconsin at $782 per month.
Average benchmark premiums topped $500 in 10 states, according to the report.
One of the key trends that’s slowing premium growth is increasing competition in the exchanges, as many insurers are expanding their offerings or returning to the marketplaces to offer plans, according to the report.
“New entrants included national and regional insurers, Medicaid insurers, and small start-up insurers,” the researchers wrote.
“Medicaid insurers are those who operated exclusively in the Medicaid managed-care market before 2014; they have increased their participation in the Marketplaces over time. Medicaid insurers are experienced in establishing narrow, low-cost provider networks that allow them to offer lower premiums than other insurers.”
Several states have also launched programs that aim to lower premiums, according to the report. These include reinsurance programs, which have been rolled out in 12 states as of this year. Some states have also expanded Medicaid in recent years, which leads to some low-income people with costly health needs switching to that program, the researchers said.
Missouri Gov. Mike Parson announced Thursday that his state would not expand Medicaid coverage to 275,000 residents who will become eligible on July 1st, despite a 2020 ballot initiative in which a majority of the state’s voters approved the expansion. Because the Missouri legislature has blocked funding for the expansion, Parson declared that the state’s Medicaid program, MO HealthNet, would run out of money if it moved forward.
The legislature’s decision to block funding was bolstered by an appeals court opinion last year, which challenged the expansion because the ballot initiative did not include a funding mechanism for widening coverage.
Under the Affordable Care Act (ACA), the federal government would have picked up 90 percent of the cost of expanding Medicaid in the state, in addition to boosting funding for existing Medicaid enrollees by 5 percent, thanks to a measure in the recent American Rescue Plan Act.
The governor’s decision leaves in place one of the strictest Medicaid eligibility standards in the nation: a family of three in Missouri must earn less than 21 percent of the federal poverty level—$5,400 per year—in order to qualify for coverage. The expansion measure would have opened the program to childless adults, and raised the eligibility limit to 138 percent of the federal poverty level.
The Missouri Hospital Association called the decision an “affront” to voters, pointing out that the state is currently running a budget surplus, and could easily allocate funds for the expansion. The status of Medicaid expansion in Missouri, which would become the 38th state to undertake expansion since the ACA’s passage, will ultimately be decided by court ruling, according to observers.
Meanwhile, like other states (mostly in the Southeast) that have resisted Medicaid expansion,Missouri will continue to see tax dollars flow out of the state to fund benefits in states that have expanded eligibility—despite the express will of voters. Given ample evidence that Medicaid expansion boosts access to care, health status, and health system sustainability,it’s nearly unfathomable that the politics of “Obamacare” continue to complicate the extension of this critical safety-net program.