US Supreme Court leans toward upholding ObamacareBMJ 2020; 371 doi: https://doi.org/10.1136/bmj.m4377 (Published 11 November 2020) Cite this as: BMJ 2020;371:m4377
The US Supreme Court heard oral arguments yesterday (10 November) in the case attempting to overturn the Affordable Care Act, widely known as Obamacare. The court will issue its decision before the end of its term in June 2021.
Questions by two conservative justices, chief justice John Roberts Jr and associate justice Brett Kavanaugh, indicated that they were leaning toward preserving the act, as did comments by the liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. This would suggest a 5-4 ruling in favor of preserving Obamacare. The other four justices are conservative.
Obamacare, President Barack Obama’s signature legislation to provide health insurance to more Americans, was passed in November 2010 with only Democrats voting in favor.1 President Donald Trump subsequently promised to repeal Obamacare and replace it with something better, but he never proposed a replacement plan. In an unusual move, his administration did not defend federal law—Obamacare—but instead joined the people trying to overturn it.
In the 10 years since they were passed, Obamacare’s provisions have become woven into all health insurance in the United States. Overturning it would cause disruption throughout the health insurance system.
Texas v California
The “individual mandate” in Obamacare was the reason given for the lawsuit to overturn the entire act. The mandate required uninsured Americans to buy health insurance or pay a penalty on their annual income tax returns. Thought to be essential to the viability of the act, the mandate was removed by Congress in 2017. Despite concerns that this meant the end of Obamacare, the act continued to function and to provide health insurance to around 20 million Americans.
The lawsuit, known as Texas v California, claimed that, since there was no penalty for not having insurance and the act no longer raised tax revenue, it could not be justified as a tax and was therefore unconstitutional.2 Texas led 17 other states in the lawsuit.
The parties defending the act said that the mandate and the now non-existent tax penalty could be “severed” from the act and that the other provisions of the act could continue in force. During oral arguments the justices discussed whether laws urging people to do things—such as wearing masks in the current pandemic, with no penalty for not doing them—were constitutional.
Donald Verrilli Jr, who served as solicitor general in the Obama administration, spoke in favor of keeping the law during oral arguments. He said that Obamacare included “carrots,” such as the subsidies to help people buy insurance, as well as the “stick,” the mandate. “It’s turned out that the carrots worked without the stick,” he said.3
During the oral arguments Roberts, the chief justice, said that the law might stand on its own if the individual mandate section was severed.
Lost jobs and insurance
Obamacare, which provides health insurance to more than 20 million Americans, is viewed as especially important given the ongoing impact of the covid-19 pandemic. On 10 November the US set new pandemic records: a total of 10 238 243 cases of covid-19, 239 588 deaths, 130 553 new cases, 745 new deaths, and 61 964 current hospital admissions.456
The number of uninsured people is growing because many lose insurance when they lose their jobs. Under Obamacare uninsured people can buy health insurance through government marketplaces, and there are subsidies to help people with lower incomes.
The act provides protections for all people with health insurance, not just those with Obamacare. It also means that health insurance companies cannot discriminate against people with pre-existing conditions or charge them higher premiums—and an estimated 131 million Americans have pre-existing conditions. Young people up to age 26 can stay on their parents’ health insurance plans.
Insurance policies are required under the act to cover preventive care, maternity care, and contraception. States were encouraged to extend Medicaid (health insurance for people on lower incomes) and were given generous federal support: 39 states did so, providing medical care to many previously uninsured people and lessening health disparities.