This week the Supreme Court announced its decision in the Texas-led challenge to the Affordable Care Act, which has been working its way up to the highest level of the courts since the elimination of the individual mandate penalty in 2017.
Despite ongoing debates about “severability” and whether the court could uphold some provisions of the health care law while striking down others, the final decision came down to a much more basic issue: The Republican-led states challenging the law had not shown that they were harmed, and thus had no standing to sue.
Does this decision open the door to further challenges to the ACA, or will lawmakers move on to other health care reform issues? Members of the benefits and health care industries weigh in:
The final chapter
“The Supreme Court’s decision in California v. Texas is anticlimactic at best. This most recent challenge to the ACA died on procedural grounds. Basically, the Supreme Court said that the elimination of the individual mandate didn’t hurt anyone—and, since no one got hurt, no one has the right to sue. The result was thoroughly predictable from a legal perspective. Perhaps most surprising for some is that the decision is not transparently political. Republican-appointed Justices Thomas, Kavanaugh and Barrett joined with the majority (which included Chief Justice Roberts, who was famously the deciding vote the last time the ACA’s fate was in the hands of the Court). Only Justices Alito and Gorsuch dissented.
“Justice Alito’s dissent describes the successive challenges to the ACA in the Courts as a trilogy. And, I’m inclined to agree that like any good trilogy, this is the final chapter. Over 11 years after its passage, the Affordable Care Act has become part of the fabric of our health care landscape. Any future changes are likely to be incremental and happen in Congress. I can’t help but think today about the vehement opposition to Social Security when it was passed in 1935…”
What’s left unsaid
“The Supreme Court tossed out California vs. Texas before getting to a much-needed discussion about the issue at hand – the individual mandate that requires Americans to purchase health insurance. At one time, the individual mandate allowed for people to be fined for not signing up for healthcare coverage. That fine has since been eliminated, and its elimination is what prompted ACA challengers to contest that the mandate is invalid – and by extension, the ACA as well.
“Rather than debate whether a modification to the individual mandate is grounds for the Act’s entire removal, there is more fruitful debate that needs to be had about the efficacy of the ACA in improving care for low-income individuals and the country in general. In fact, the Act has had limited beneficial impact on the intended audience and the larger system. Requiring all individuals to purchase insurance should have sparked more competition by insurers for the business. The fact that it did not reflect a failure in the design and execution of the legislation. And the lack of beneficial impact on the system as a whole reflects the need to address issues of transparency and linkage to cost and quality that will continue to hobble our system until it is fixed.”
Bigger fish to fry
“For employers sponsoring group health plans, today’s decision has no direct consequences. Looking ahead, President Biden made ACA expansion a core tenet of his health care platform on the campaign trail, and Democrats included a two-year increase and expansion of ACA marketplace plan subsidies in the recently enacted American Rescue Plan Act. Biden and Democrats in Congress are looking to make these more generous subsidies permanent as part of the president’s American Families Plan.
“Other proposed ACA changes include fixing the ‘family glitch’ that ties employer plan affordability to self-only coverage and narrowing the healthcare reforms that states can pursue through innovation waivers. Rolling back the Trump administration’s short-term, limited-duration insurance rules is also on the agenda. In addition, the Biden administration continues to pursue its health policy agenda through rulemaking and executive action.
“Progressive Democrats are championing more ambitious proposals, such as creating a public option plan to compete with private insurers and expanding Medicare. Letting Medicare negotiate drug prices also has broad support within the party. But the outlook for these reforms and even relatively moderate changes to the ACA is uncertain. Though Democrats might be able to pass legislation without Republican support through a special process tied to the budget, they would need backing from all of their own members in the 50-50 Senate and could not lose more than four Democrats in the narrowly divided House.
“Employers should watch for any changes to the availability of ACA subsidies in the public marketplace, which could affect the current affordability standard for employer-sponsored plans to avoid penalties.”
A deeper read
“I believe that there will continue to be challenges to the ACA but with the Supreme Court now ruling in three separate situations in favor of the ACA, any future challenge will be based on a narrow issue within the ACA language. The conclusion that I draw from these rulings is that Congress, and not the court, is the appropriate branch of government to resolve future issues and challenges with the ACA.”
Time to move forward
“Let us hope that the dismissal of this case marks the end of meritless attacks against a milestone law. It is time now for our nation to resume its path toward achieving universal health care coverage.
“The ACA is one of the most significant laws in generations. Since its passage, tens of millions of Americans—in particular people of color, those with low incomes and preexisting conditions, and young adults—have received quality, affordable health care coverage. States that have expanded their Medicaid programs under the ACA have provided health coverage to millions, leading to improved health outcomes and stronger state economies.
“Now we must finish the job to ensure that every person in the United States—no matter their skin color, income level, or zip code—has health insurance and a fair and just opportunity to live the healthiest life possible.”
A step in the right direction
“This Supreme Court decision shows how influential the Affordable Care Act has been on the US health care system. The changes this legislation introduced 11 years ago, such as protections for patients with preexisting conditions and essential health benefits, are integral to our health care experience today. Whether we get health insurance through a marketplace or through our employer, we have better coverage options as a result of the ACA.
“While we’ve made progress toward providing accessible, high-quality care to everyone, we can go further. As an industry, we must use price and quality transparency to empower patients to make confident health care choices for themselves and their families.”
–David Vivero, health care policy expert and CEO of Amino
A blip, not a bomb
“[This] was a common-sense ruling where the facts demonstrated that the individual mandate penalty could not be enforced, so efforts to claim harm related to the penalty fell short of convincing the court that it should revisit its two previous opinions. It was the easiest way to make the decision a blip, not a bomb.
“Two justices would have thrown caution to the wind and overturned any part of the ACA that was linked to the mandate – which would have thrown one-sixth of the US economy into chaos. Insurance programs, including those offered by employers, would have been thrown into turmoil.
“The next big thing is the No Surprises Act. I am expecting regulations any minute now which build on the ACA’s structure to prevent surprise billing and regulate how health plans pay doctors.”
–Kathryn Bakich, national director of health care compliance & SVP at Segal
Here to stay
“The continued survival of the ACA despite formidable legal challenges suggests that the courts are unlikely to substantially limit its reach. Indeed, both the concurrence and dissent commented on the lengths to which—in their view—the Court acted to ‘save’ the legislation. Although the Court’s latest decision rests on constitutional grounds that limit the Court’s ability to intervene in matters in which no injury is traceable to the challenged conduct, the fact that the Affordable Care Act has now survived a “trilogy” of challenges suggests that until Congress acts, its provisions are here to stay.
“In its ruling, the Court dismissed the suit without reaching the merits, holding that the plaintiffs lacked constitutional standing to challenge the law in Federal court. Writing for the majority, Justice Breyer concluded that with a penalty of zero, the individual mandate had no teeth, leaving the plaintiffs with no concrete stake needed for the Court to hear the dispute.
“Justices Alito, joined by Justice Gorsuch, dissented, arguing that because Texas was seeking to invalidate the entire ACA, which was “inseverable” from the individual mandate, it did suffer an injury sufficient to confer standing. But the majority (and Justice Thomas in concurrence) ruled that this argument has been waived, sparing them the need to address the merits and the dissent’s position that the Act was unconstitutional.”
–Stephen Lucke, partner and co-chair of the Health Litigation Group and ERISA Litigation Practice Group, Dorsey & Whitney
A critical lifeline
“COVID-19 has shone a light on the critical importance of health care access and the horrifying disparities in health care among vulnerable communities. For more than eleven years, the Affordable Care Act has made it possible for more than 20 million people to see a doctor or health care provider when needed, and who, without the ACA, would otherwise be left to fend for themselves. Today, the Court ensured that the ACA will continue to be a critical lifeline for the people most in need by rejecting yet another frivolous challenge.”
“There is no way to overstate how significant of an impact the ACA has had on the health of marginalized communities. The ACA’s health care reforms—such as expansion of Medicaid, nondiscrimination protections under Section 1557, and protections for people with preexisting conditions—made it possible for more people to access care, including people living with HIV, those with lower incomes, and those who have faced barriers to care in the past such as LGBTQ people and people of color. For so many, these reforms were revolutionary.”
–Omar Gonzalez-Pagan, senior attorney and health care strategist, Lambda Legal
Wait for it…
“What the Court didn’t do may prove infinitely more important, as they refused to make a decision on the actual constitutionality of the Affordable Care Act, leaving the door open for its key provisions to be struck down the next time they allow a new set of petitioners to enter their hallowed halls to take a new swing at the fences.
“Believing that this decision is anything more than a reprieve for Obamacare is a dangerous miscalculation. There is a significant fight to come and no one should be surprised if it comes as early as the Supreme Court’s next term, which begins in October.”
–Aron Solomon, JD, head of strategy for Esquire Digital