By David G. Savage and Noam N. Levey
Los Angeles Times
WASHINGTON — Supreme Court justices on Tuesday sounded ready to uphold the Affordable Care Act for the third time and reject the latest challenge from its conservative critics, including President Donald Trump.
Most of the justices gave a skeptical hearing to Texas Republicans and Trump's lawyers, who insisted the entire law, also known as Obamacare, should be voided because Congress had eliminated the tax penalty for those who did not have insurance.
Several justices said that while this change may have ended the much-disputed insurance "mandate," removal of the provision did not invalidate the rest of the broad law, including its insurance subsidies for 20 million Americans and its coverage protections for tens of millions more with preexisting conditions.
Chief Justice John G. Roberts Jr. said Congress in 2017 did nothing more than eliminate the tax penalty for those who did not have insurance. "Here, Congress left the rest of the law intact. That seems to be compelling evidence on the question" that the rest of the law should stand, he said.
Justice Brett M. Kavanaugh took the same view. He said the mandate to enforce people to buy insurance was unconstitutional, but that should not affect the rest of the law. "It seems very clear the proper remedy is to sever the mandate provision and leave the rest," he said.
Joined by the three liberal justices, they could form a majority to uphold the law.
Tuesday's hearing marked the third major challenge to Obamacare to come before the high court as well as the first major test for Justice Amy Coney Barrett. Twice before the law was upheld by a slim majority of liberal justices joined by Chief Justice Roberts.
Senate Democrats said last month they feared Barrett would cast a key vote to strike down the law, but she signaled she did not see a reason for striking down a broad law because of one flawed provision.
When he was elected, Trump promised to "repeal and replace" Obamacare, but he did neither, despite Republican control of Congress for his first two years.
GOP lawmakers in 2017 did manage to effectively cancel the tax penalty under the law for people who refused to have insurance. This was portrayed as merely a reform because it essentially ended the much disputed "mandate" to have insurance.
But Texas Attorney General Ken Paxton filed a suit contending that revoking the tax penalty meant the entire law must fall. He relied on the notion that the tax penalty was seen as crucial to the high court's decision upholding the law in 2012.
While most legal experts saw this claim as far-fetched, it won before a conservative federal judge in Fort Worth, and a 2-1 panel of the 5th Circuit Court in New Orleans.
California Attorney General Xavier Becerra led the defense of the law and urged the high court to hear an appeal and end the legal threat to the Affordable Care Act. The Trump administration joined the case on the side of Texas.
Health care leaders say the pandemic has only highlighted the need for preserving the law.
"The ACA extended health coverage to millions of historically uninsured and vulnerable people in Los Angeles," said Dr. Christina Ghaly, director of health services for Los Angeles County. "Whether it was people experiencing homelessness, those with preexisting conditions, or anyone between the age of 18 and 65 who simply could not afford it, the ACA meant coverage for an essential set of health benefits."
Invalidating the whole law would allow health insurers to resume their long-standing practice before the law's enactment of turning away people with preexisting medical conditions.
Such a decision would also likely strip health insurance from tens of millions of Americans who have gained insurance since the law's coverage expansion began in 2014. Gone would be state-based insurance marketplaces that have provided coverage options for Americans who don't get health benefits at work.
Billions of dollars of federal aid to states to allow them to expand eligibility for Medicaid would also be eliminated, forcing states to pare back their health care safety nets.
A host of other protections and benefits in the law would have to be scrapped, as well. Young adults under age 26 would no longer be allowed to remain on their parents' health plans. Seniors enrolled in the Medicare Part D program would be forced to pay more for prescription drugs.
For states like California, which have aggressively implemented the law, the impact of repealing it could be even more devastating, according to health care officials, hobbling a host of efforts to improve the quality of medical care in hospitals, clinics and physicians' offices that were catalyzed by the law and the coverage expansion it made possible.
Health care officials are also concerned that the focus on the fate of the health care law before the court may dissuade some Americans from enrolling in health coverage on insurance marketplaces such as Covered California. Open enrollment on Covered California and the federal HealthCare.gov marketplace began this month.
"We don't want to lose sight of the fact that today, there are millions of Californians who can get subsidized coverage," said Covered California Director Peter Lee, who stressed that coverage for 2021 should not be in doubt, despite the lawsuit.
When congressional Democrats and the Obama administration were crafting the health care law, they and many experts argued that a mandate requiring Americans to get health insurance was critical to assuring the law and its protections for people with preexisting conditions would function.
But as time has passed, it has become increasingly clear this is not the case, undermining a central argument being made by the Trump administration, Texas and the other Republican-led states seeking to invalidate the law.
Despite the elimination of the penalty for not having insurance, insurance marketplaces have not collapsed. In fact, enrollment has remained steady, as have premiums.
And there is now widespread agreement that the health care law's system of providing generous subsidies to low- and moderate-income consumers to help them buy coverage is enough to bring millions of people into the markets, even without a mandate.
Senior Trump administration officials — including Seema Verma, who oversees Medicare, Medicaid and the marketplaces — and government lawyers have repeatedly hailed the stability of the marketplaces in recent years, noting enrollment and premium numbers.
"Premiums have declined," Verma said in a March 2019 speech to the Federation of American Hospitals.