Ginsburg’s death leaves Obamacare in greater danger than ever

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The death of Justice Ruth Bader Ginsburg just cut the odds of Obamacare’s survival in a lawsuit once dismissed as a longshot.

Before Ginsburg’s death Friday night, few legal observers thought that the Supreme Court was gearing up to overturn or significantly wound the health care law in a case the justices will hear exactly one week after Election Day. The new vacancy increases the likelihood the court could undercut Obamacare’s popular insurance protections for preexisting conditions, especially if President Donald Trump can quickly install a new justice, or even drag out the legal fight.

The Trump-supported challenge to the Affordable Care Act was largely shrugged off when Texas and a band of conservative-leaning states over two years ago claimed the law was rendered unconstitutional after Congress eliminated the tax penalty for skipping health insurance. But the lawsuit has been validated by Republican-appointed justices in lower courts, and Obamacare will have one less ally on the conservative-dominated bench when the Supreme Court considers the law’s fate this fall.

“I’ve told people the big wild card is whether or not Ginsburg makes it to hear the case. It turns out she didn’t, and that introduces a lot of uncertainty,” said Nicholas Bagley, a University of Michigan law professor who’s tracked the lawsuit and supports Obamacare.

Here’s how the case could play out:

Two conservative justices save the law

The Supreme Court could agree with the Republican states that the individual mandate should be struck down but preserve the rest of the law – the health insurance subsidies, Medicaid expansion, protections for people with pre-existing conditions and more. Such a decision would preserve the status quo, in which people are no longer penalized for not having health insurance.

Legal experts contend this scenario remains a strong possibility. Few think Chief Justice John Roberts, who’s emerged as the court’s ideological center, is now ready to ditch Obamacare after brokering a compromise to save it in the first major challenge to the law in 2012.

And one of Trump’s appointees, Justice Brett Kavanaugh, has a record of seeking to preserve as much of a law as possible if parts are flawed – a legal concept known as “severability.” An opinion Kavanaugh authored on a robocall case this summer, which was joined by Roberts and fellow conservative Justice Samuel Alito, drove this point home, asserting that the court “presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

Some saw the opinion as a hint of how Kavanaugh would address the Obamacare case. Roberts separately has written similarly about severability, and stalwart conservative Justice Clarence Thomas’ opinions have endorsed targeted relief for parties claiming damages.

“No justice in the current court has said anything about severability that helps Texas’ argument,” said Jonathan Adler, a conservative law professor at Case Western Reserve University who’s been critical of the red states’ lawsuit. “It’s just that not every justice is on record or has endorsed a holding that clearly rejects Texas’ position.”

A tie, followed by legal limbo

There’s the possibility that the legal fight over Obamacare could be extended even longer if Trump and Senate Majority Leader Mitch McConnell fail to push through a new justice in time for the Nov. 10 hearing on Obamacare.

If only Roberts sides with the court’s three liberal justices to uphold Obamacare, that would leave a 4-4 tie. This would ultimately kick the case back to a conservative federal judge in Texas, Reed O’Connor, who in 2018 ruled that the entire law was invalid. O’Connor would likely reach a similar conclusion, triggering another round of appeals that could bring the case back to the Supreme Court months or even years later.

It’s the type of scenario the justices tried to avoid when they accepted the Obamacare case rather than let it go back to O’Connor as a federal appeals court previously ordered, Bagley noted. However, the bench’s thinking may have changed. It’s not clear which justices agreed to hear the case – it only takes four votes – though legal observers believe it was Ginsburg and her three liberal colleagues.

The insurance protections are axed, the rest stays

Some Obamacare supporters braced for this possibility even before Ginsburg’s death. The Obamacare statute explicitly links the individual tax penalty to the law’s key coverage protections, including those for pre-existing conditions. The court could find that private insurers are no longer bound to these mandates if Americans aren’t somehow compelled to buy coverage.

The Obama administration itself in 2012 argued this very point before the Supreme Court as it tried to save the individual mandate. It was also the original position adopted by Trump’s Justice Department two years ago after the GOP states’ lawsuit was filed before it argued the entire law should fall.

Such a ruling would allow the conservative justices to assert they’re not tossing the law, just removing its problematic parts. But it would throw the insurance marketplaces into chaos and force Congress or whoever’s president to consider emergency measures.

“I think those provisions – the protections for people with pre-existing conditions – are most at risk in this scenario,” said Katie Keith, a health law professor at Georgetown University who focuses on ACA litigation. “That’ll be the issue to watch for during oral argument.”

Still, Adler thought the court is unlikely to slice up the law this way, given that the Trump administration is no longer arguing for it. “I don’t see the court really freelancing on that,” he said.

A legislative rescue

A ruling on the case isn’t expected until early next year. Should the court cut away at the law or extend the legal fight, that could put pressure on Congress to act. What comes next depends on the outcome of the November elections.

If Joe Biden is elected president and Democrats have full control of Congress, they could look to pass legislation to render the lawsuit moot – for instance, by axing the entire individual mandate and shoring up language around insurance protections. However, that could require blowing up the Senate filibuster to ensure Republicans can’t block it, or using a fast-track budget procedure that could get complicated.

Democrats could also face pressure from the increasingly vocal progressives within their ranks to do much more if a legislative fix is on the table. In addition to more Obamacare subsidies, Biden has promised to pass a public option – a heavy lift that may become easier politically if the court effectively forces Congress into action to salvage guaranteed coverage.

With a divided Congress and Trump still in the White House the law’s fate would be even murkier. Trump and vulnerable Republicans facing tough election prospects contend they want to preserve preexisting coverage protections, but for years they have failed to agree on a plan. Though Trump has consistently teased a new health plan this summer, there’s no evidence one is on the way.

No matter what, a quick rescue of the law’s coverage protections would be anything but a sure bet.

“The one thing we can say for certain is that health care is hard,” Bagley said. “It’s hard for Democrats to get behind a single plan because there are lots of ideas, and it’s even harder for Republicans who fight over whether we need health reform at all.”

He added: “If you’re going to bet on the Democrats coming up with a nimble, quick, live response, I’m not sure that’s really in the cards.”

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