Obamacare Survives Latest Supreme Court Challenge


WASHINGTON — The Affordable Care Act on Thursday survived a third major challenge as the Supreme Court turned aside the latest effort by Republicans to kill the health care law.

The law, President Barack Obama’s defining domestic legacy, has been the subject of relentless Republican hostility. But attempts to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law gained popularity and was woven into the fabric of the health care system.

On Thursday, in what Justice Samuel A. Alito Jr. called, in dissent, “the third installment in our epic Affordable Care Act trilogy,” the Supreme Court again sustained the law. Its future now seems secure.

The margin of victory was wider than in the earlier cases, with six members of the court joining Justice Stephen G. Breyer’s modest and technical majority opinion, one that said only that the 18 Republican-led states and two individuals who brought the case had not suffered the sort of direct injury that gave them standing to sue.

Chief Justice John G. Roberts Jr., who had cast the decisive vote to save the law in 2012, was in the majority. So was Justice Clarence Thomas, who had dissented in the earlier decisions.

“Whatever the act’s dubious history in this court,” Justice Thomas wrote in a concurring opinion, “we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act — they have not identified any unlawful action that has injured them. Today’s result is thus not the consequence of the court once again rescuing the act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.”

Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett also joined Justice Breyer’s majority opinion. At Justice Barrett’s confirmation hearings last year, Democrats portrayed her as a grave threat to the health care law.

The court did not reach the larger issues in the case: whether the bulk of the law could stand without a provision that initially required most Americans to obtain insurance or pay a penalty.

The plaintiffs sought to take advantage of the 2012 ruling, in which Chief Justice Roberts upheld a central provision of the law, its individual mandate requiring most Americans to obtain health insurance or pay a penalty, saying it was authorized by Congress’s power to levy taxes.

The plaintiffs in the new case argued that the mandate became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because it could no longer be justified as a tax. They went on to say that this meant the rest of the law must also fall.

The challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

Justice Breyer did not address most of the arguments that were the basis of those decisions, focusing instead on whether the plaintiffs were entitled to sue at all.

The two individuals, he wrote, suffered no harm from a toothless provision that in effect merely urged them to obtain health insurance. Similarly, he wrote, the states did not sustain injuries tied directly to the elimination of the penalty that had been part of the individual mandate.

The states argued that the revised mandate would cause more people to take advantage of state-sponsored insurance programs. Justice Breyer rejected that theory.

“The state plaintiffs have failed to show,” he wrote, “that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.”

“Neither logic nor intuition suggests that the presence of the minimum essential coverage requirement would lead an individual to enroll in one of those programs that its absence would lead them to ignore,” Justice Breyer wrote. “A penalty might have led some inertia-bound individuals to enroll. But without a penalty, what incentive could the provision provide?”

In a vigorous dissent, Justice Alito, joined by Justice Neil M. Gorsuch, said the third installment of the court’s Affordable Care Act trilogy “follows the same pattern as installments one and two.”

“In all three episodes, with the Affordable Care Act facing a serious threat,” he wrote, “the court has pulled off an improbable rescue.”

Justice Alito wrote that the court has routinely found that states have standing to challenge federal initiative. “Just recently,” he wrote, “New York and certain other states were permitted to challenge the inclusion of a citizenship question in the 2020 census even though any effect on them depended on a speculative chain of events.”

He said there were “novel questions” about whether the individual plaintiffs could sue. But “the states have standing for reasons that are straightforward and meritorious,” he wrote. “The court’s contrary holding is based on a fundamental distortion of our standing jurisprudence.”

Unlike the majority, Justice Alito went on the address the larger issues in the case, California v. Texas, No. 19-840, saying the mandate was now unconstitutional and could not be severed from much of the rest of the law.

Had Justice Alito’s view prevailed, the nation’s health care system would have experienced an earthquake.

Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people — a nearly 70 percent increase — according to recent estimates from the Urban Institute.

The biggest loss of coverage would have been among low-income adults who became eligible for Medicaid under the law after most states expanded the program to include them. But millions of Americans would also have lost private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

A ruling against the law would also have doomed its protections for Americans with past or current health problems — or pre-existing conditions. The protections bans insurers from denying them coverage or charging them more for it.

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