Obamacare still has some of its nine lives left

A more conservative court won’t necessarily crush Obamacare

A woman wearing a protective face mask walks by a mural honoring healthcare workers in Manhattan, New York, U.S., August 3, 2020.

A woman wearing a protective face mask walks by a mural honoring healthcare workers in Manhattan, New York, U.S., August 3, 2020.

REUTERS/Shannon Stapleton

(The author is a Reuters Breakingviews columnist. The opinions expressed are his own.)

NEW YORK - Obamacare has survived multiple brushes with death. Its next may come in November, when the healthcare reform championed by President Barack Obama a decade ago comes before the U.S. Supreme Court, which may by then have a new, conservative-leaning judge on its bench. The Affordable Care Act, to give the legislation its proper name, has plenty of enemies, but it has also created winners, including patients, hospitals and insurers. That could make it harder to kill.

Eighteen states want the court to squash the act. The Supreme Court decided to allow Obamacare in 2012, arguing that one of its main features, a levy on people who decline to be insured at all, was a tax – which the U.S. constitution allows – rather than a forced purchase of an unwanted service. But after Congress set the levy to zero in 2017, the states now argue it’s not a tax, and that the whole thing should be overturned.

Obamacare has powerful allies, though. Voters are one group. When asked, 49% of the population views the law favorably, while 42% doesn’t, according to a Kaiser Family Foundation poll in September. But increased coverage has proved a vote-winner even in Republican-dominated states such as Utah, Idaho, Nebraska and Missouri. Insurers and hospitals are also lobbying to retain the current system, which has turned 16 million uninsured Americans into customers over the past decade. No wonder given the benefit – UnitedHealth’s market value, the nation’s largest insurer, has risen 10-fold to $288 billion since the law passed.

A more conservative court won’t necessarily crush Obamacare. President Donald Trump’s new nominee for the bench, Amy Coney Barrett, is a conservative, and opposition to the act is strong on the right. That said, she has argued that “judges are not policymakers.” There are many places the legal challenge could fail, including whether states have the right to bring the case, or whether the whole law should be overturned if a meaningless part is unconstitutional.

If Democrats score major victories in November’s election, Obamacare could get a reprieve anyway. A Democratic dominated government would want to ensure more people are covered and might work around Court objections by reattaching a penalty. Given conservative antipathy to the law, other challenges are probably inevitable. But Obamacare has a habit of surviving – and there’s reason to think it will again.


- U.S. President Donald Trump on Sept. 26 nominated Amy Coney Barrett as the judge who he wishes to replace Ruth Bader Ginsburg on the Supreme Court. Senate Majority Leader Mitch McConnell pledged to move forward quickly with the confirmation process.

- Barrett formerly clerked for conservative justice Antonin Scalia, who sat on the Supreme Court until his death in 2016. She described Scalia, whose decisions often leaned heavily on the text of statutes rather than the intent behind them, as her mentor in her acceptance of the nomination. “His judicial philosophy is mine too: a judge must apply the law as written. Judges are not policymakers,” Barrett said.

- The Supreme Court is due to hear arguments on Nov. 10 for a case in which 18 states seek to invalidate the Affordable Care Act. That act provided for both increased coverage through the expansion of Medicaid, the government program that offers health benefits for those will low incomes, and part-public funded health insurance for individuals, with the proviso that most of those who did not take any insurance at all would effectively face a financial penalty.

- The U.S. Census Bureau estimated there were 30 million Americans without health insurance in 2019. The Affordable Care Act was passed in 2010, and the number of uninsured that year was estimated to be 46.5 million. The number fell to 26.7 million in 2016 according to the government, but has been rising since.

(The author is a Reuters Breakingviews columnist. The opinions expressed are his own.)

(Editing by John Foley and Amanda Gomez) ((robert.cyran@thomsonreuters.com; Reuters Messaging: robert.cyran.thomsonreuters.com@reuters.net))

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