Ginsburg’s Passing Creates ACA Guessing Game

Ginsburg’s Passing Creates ACA Guessing Game

WASHINGTON — With the death on Friday of Supreme Court Justice Ruth Bader Ginsburg, what will happen to the case of California v. Texas, which deals with whether the Affordable Care Act’s individual mandate is constitutional? The answer is not entirely clear, according to one legal expert.

Currently, the oral arguments in the case are scheduled for Nov. 10, a week after the presidential election. President Trump has said he will announce his nominee to replace Ginsburg — likely to be a very conservative jurist based on Trump’s list of his potential high court picks — by the end of this week. Senate Majority Leader Mitch McConnell (R-Ky.) has said he will work to get Trump’s pick approved, despite asserting in 2016 that the current president shouldn’t name a Supreme Court justice during a presidential election year.
Rescheduling Oral Arguments a Possibility
When it comes to the Affordable Care Act (ACA) case, the court’s oral arguments schedule can be rearranged, said Miles Zaremski, a healthcare attorney in Chicago and past president of the American College of Legal Medicine. This could occur if, for example, a new justice hasn’t yet been approved by the Senate and Chief Justice John Roberts thinks that the likely outcome of the case — with only eight justices on the court — will be a 4-4 tie. “The Supreme Court historically does not favor ties,” Zaremski said in a phone interview, adding that Roberts “can just reschedule for after a ninth justice is seated.”
California v. Texas (a continuation of the case originally known as Texas v. United States) was filed in early 2018 by Texas and 19 other Republican-controlled states. In December 2018, lower-court Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas sided with the plaintiffs and agreed that the ACA was unconstitutional after Congress scrapped the individual mandate penalty as part of the Tax Cuts and Jobs Act of 2017. Congress had unequivocally stated time and again that the mandate was “essential” and “inseverable” from the rest of the ACA’s provisions, O’Connor explained, but rewriting the law without its “essential” feature was beyond the power of his court.
The case was appealed, and in December 2019, a federal appeals court upheld O’Connor’s ruling, but told the district judge in the case to look again at whether other parts of the law can still stand. “The individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power,” wrote Judge Jennifer Walker Elrod for the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. “On the severability question, we remand to the district court to provide additional analysis of the provisions of the ACA as they currently exist.”
What if There’s a Tie?
What happens if the case goes forward with only eight justices and it does ultimately come out 4-4? In such a deadlock, the decision of the lower court stands. However, press reports claiming that this would invalidate the entire ACA are incorrect because the Fifth Circuit didn’t strike down the entire law, said Zaremski, who previously has contributed opinion pieces to MedPage Today.
“The Fifth Circuit said, ‘Yes, the individual mandate is unconstitutional but we aren’t going to make the decision about whether the entire act is constitutional. We’re going to send it back to the district court to gather more evidence to see what provisions of the act are severable or inseverable from the mandate.'”
For example, he continued, “The ACA has a provision regarding nutritional guidelines for restaurants … Does that have anything to do with the taxing power of the Congress and the fact that individual mandate no longer exists?” Even if various parts of the law are now deemed inseverable from the mandate, those decisions could again be appealed to the Fifth Circuit, Zaremski added.
Another possibility is that Roberts and another normally conservative justice could side with the court’s three remaining liberals, resulting in a 5-3 ruling against the plaintiffs. If that happens, the whole case “would just go away,” Zaremski said. Which conservative jurist might do that? Probably not Samuel Alito, Clarence Thomas, or Brett Kavanaugh, “but [Neil] Gorsuch would maybe be one such person,” he said.
If the high court waits until a new justice chosen by Trump is seated before hearing the case and making a decision, it could come out 5-4 or 6-3 in favor of the plaintiffs — and the court could also decide that the rest of the ACA is unconstitutional as well. “That would upend the healthcare market nationwide, with all of its provisions,” said Zaremski, noting that more than 30 states have expanded Medicaid under the ACA. “If the ACA is ruled unconstitutional by the Supreme Court, then what happens to the expansion that states undertook pursuant to a law that’s unconstitutional? That’s the gloss over the entire importance of the case.”
Marie Fishpaw, director of domestic policy studies at the Heritage Foundation, a right-leaning think tank here, says when it comes to the ACA, congressional action will be needed no matter what. “The reality is that no matter how the Supreme Court decides on the pending Obamacare case, Congress must act on health reform,” she said in an email. “Obamacare has failed to help Americans lower their health care costs or improve their coverage options. A growing body of conservative leaders support the Health Care Choices Proposal, which would address the pressing healthcare needs of Americans. This proposal would lower healthcare costs, protect those with pre-existing conditions, increase coverage choices, and stop surprise billing.”
The other big question under the new court is what will happen to cases involving abortion. “Justice Ginsburg was a champion of abortion access and for other types of reproductive healthcare,” said Julie Rikelman, senior director of U.S. litigation at the Center for Reproductive Rights, in a phone interview. “This is obviously a tremendous loss for the court, and a tremendous change.” If Trump ends up appointing another justice to the court, “the right to abortion and other reproductive healthcare issues will be in peril like never before, because he’s said he’ll appoint justices who will automatically overturn Roe v. Wade,” the Supreme Court’s 1973 decision legalizing abortion.
A few reproductive rights cases are at the court right now “in different procedural stages,” Rikelman said; one case involves a state law barring abortion after 15 weeks’ gestation, while another has to do with access to medication abortion during the COVID-19 pandemic.

“A dozen other cases might be at the court’s doorstep in the next 6 months,” she said. “There are lots of cases pending at appeals courts right now — lots of other cases in the pipeline.”

  • author['full_name']
    Joyce Frieden oversees MedPage Today’s Washington coverage, including stories about Congress, the White House, the Supreme Court, healthcare trade associations, and federal agencies. She has 35 years of experience covering health policy. Follow

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