Justice Ginsburg’s death puts future of ObamaCare at risk

The death of Justice Ruth Bader Ginsburg is putting ObamaCare at risk, as a more conservative Supreme Court could strike down the law in a case to be heard shortly after Election Day.

The high court will hear arguments on Nov. 10 in a lawsuit brought by a group of Republican-led states, and backed by President Trump, seeking to strike down the law. Before Ginsburg’s death, the court’s four liberals plus Chief Justice John Roberts, who has twice upheld the law already, were expected to provide the five votes to keep the law.

Now, with only three liberals on the court, the swing vote shifts to Justice Brett Kavanaugh, an appointee of Trump and a less sure bet to uphold ObamaCare.

“I certainly don’t feel like the law is entirely safe if Kavanaugh is the swing vote,” said Katie Keith, a health law expert at Georgetown University.

Democrats are now hammering Republicans to point out that the Trump-backed lawsuit would overturn popular protections for people with pre-existing conditions and throw roughly 20 million people off their health insurance, even amid the coronavirus pandemic.

Democratic presidential nominee Joe Biden said Sunday in Philadelphia that he is speaking for “millions of Americans who are voting because they know their health care hangs in the balance.”

“In the middle of the worst global health crisis in living memory, Donald Trump is before the Supreme Court trying to strip health care coverage away from tens of millions of families,” he added.

It is still far from a sure thing that the Supreme Court will strike down the law.

Even many conservative legal experts have said the arguments in the lawsuit are extremely weak and they do not expect the conservative justices to accept them.

The lawsuit centers on ObamaCare’s “individual mandate,” meaning the requirement that everyone has health insurance or pays a financial penalty. The Supreme Court upheld that penalty in 2012 as allowable under Congress’s power to tax, but in 2017 Congress zeroed out the financial penalty.

That means there is now a mandate technically still on the books, but with a $0 penalty for violating it that renders it toothless. Texas and other GOP-led states argue in the lawsuit that this mandate can no longer be upheld as a tax, because there is now no financial penalty, and that therefore the mandate is unconstitutional. The lawsuit then makes a leap to say that the mandate is so intertwined with the rest of ObamaCare that the entire law should be struck down too.

That final leap could be a key part of the case. Many legal experts in both parties say it is clear that Congress intended only to repeal the mandate in 2017, not all of ObamaCare. Therefore, even conservative justices could find that the mandate is “severable” from the rest of the law, meaning that even if they find the toothless figment of a mandate is unconstitutional, the rest of the law would remain standing, essentially just maintaining the status quo.

“The law’s clearly more in danger, but I think that there’s still a decent chance that the law will not be struck down,” said Tim Jost, a health law expert and professor emeritus at Washington and Lee University.

Jonathan Adler, a law professor at Case Western Reserve University who supported previous challenges to ObamaCare, said he still thinks the law will be upheld.

“Justice Ginsburg’s tragic death obviously doesn’t help those defending the ACA [Affordable Care Act], but I didn’t think this was going to be a 5-4 decision, so I don’t expect a 4-4 decision now,” he wrote in an email. “The approaches to severability advocated by the conservative justices in recent cases aren’t very helpful to Texas.”

Still, nothing is certain at the Supreme Court, and the loss of a liberal justice adds to the uncertainty on ObamaCare, where cases are inevitably caught up in the political battle.

While Trump is backing the lawsuit, Senate Republicans in tough reelection races have been dodging questions about whether they support it for months, caught between Trump and an increasingly popular health care law, especially its protections for people with pre-existing conditions.

Many vulnerable Republicans are trying to reassure voters of their support for pre-existing condition protections, despite not taking a position on the lawsuit.

Sen. Cory Gardner (R-Colo.), facing a tough reelection race, released an ad this month featuring his mother who had cancer saying: “Cory wrote the bill to guarantee coverage to people with pre-existing conditions, forever.”

“No matter what happens to ObamaCare,” Gardner adds in the ad.

The bill in question was introduced by Gardner last month and does not have any co-sponsors. It would restore some of ObamaCare’s protections for pre-existing conditions if the law is struck down, but it would not prevent insurers from simply denying coverage to people with pre-existing conditions in the first place.

Sen. Thom Tillis (N.C.), another vulnerable Republican, has a broader bill to restore pre-existing condition protections that is co-sponsored by many other Republicans facing reelection.

But that bill, like Gardner’s, is silent on what should happen to other key parts of ObamaCare, like the financial assistance that helps people afford coverage.

Spokesmen for Gardner’s and Tillis’s campaigns did not respond on Monday to questions on their stances on the law’s financial assistance or whether they support the lawsuit against ObamaCare.

Arguments in the lawsuit will be heard the week after the election. If there are still only eight justices at that time, those are the eight justices who would decide the case.

If they were to split in a 4-4 tie, they could decide to rehear the case once the ninth justice is seated, or they could issue a 4-4 ruling. A tie ruling would allow to stand a lower court ruling that punted the case back down to a conservative district judge to determine how much of the law is severable from the individual mandate. In that scenario, additional proceedings could take years, since the lower court ruling would be sure to be appealed again, eventually going back to the Supreme Court.

If some or all of the law is struck down, Congress could “fix” the issue by either repealing the remainder of the mandate or enacting a new mandate penalty, thereby addressing the constitutional problems with the mandate and rendering the lawsuit moot. But that would likely require a Democratic Congress and president next year, given Republican opposition to the law. And so far, congressional Democrats have not addressed the possibility of a fix, saying only that the court should rule in their favor in the first place.