Conservative US supreme court justices suggest Obamacare will be upheld

Brett Kavanaugh and John Roberts indicated law could be upheld even if court deems one part of it unconstitutional

Rosa Hernandez, 56, is given a flu vaccine in East Los Angeles, California Monday.




Rosa Hernandez, 56, is given a flu vaccine in East Los Angeles, California, on Monday.
Photograph: Lucy Nicholson/Reuters
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Two conservative supreme court justices have suggested the Affordable Care Act (ACA) could be upheld, as oral arguments began in a suit backed by the Trump administration which threatens the healthcare of millions amid a global pandemic.

At risk in the case is the healthcare coverage of at least 20 million Americans and a number of popular protections that have shifted expectations regarding costs and how the US health system operates. The ACA, passed in 2010 and popularly known as Obamacare, allows people to access preventive health services such as vaccinations at no cost. It also caps insurer profits.

In a two-hour teleconference on Tuesday, Justice Brett Kavanaugh and Chief Justice John Roberts indicated in questioning that the law could be upheld even if the court deems one part of it unconstitutional – a crucial question in the case.

To dismantle the 2,000-page law, a majority of the justices must agree on three questions. The first is about whether the plaintiffs, which include several Republican states and two individuals, have the right to bring the suit. The second is if the individual mandate, which once required people to get health insurance or pay a penalty, is constitutional.

If the court answers yes to those questions, it must then decide whether the individual mandate can be severed from the rest of the ACA or if the entire law should fall.

Both Kavanaugh and Roberts had written recent opinions which said one provision in a law could be found invalid while the rest of the statue was still valid, a concept known as severability.

On Tuesday, Kavanaugh said: “This is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

In two previous challenges to the ACA, the supreme court has left it largely intact. But the court now has a 6-3 conservative majority and this is the first major case brought before a court with three justices appointed by Donald Trump.

The case was a flashpoint in hearings for the newest justice, Amy Coney Barrett, who was confirmed to the court two weeks ago. She has made critical statements about the law, as has Kavanaugh, another Trump appointee.

In 2017, Congress made the penalty for the individual mandate $0, sparking the lawsuit now before the court. Several states, led by California, and an attorney for the House of Representatives are defending the ACA.

Part of the deliberations on Tuesday concerned why the whole law would be struck down, if Congress did not repeal it when it had the chance to do so.

In the first question posed to the Texas solicitor general, Kyle Hawkins, Roberts said: “It’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down.”

Though Republicans have consistently opposed the law, some of its provisions enjoy overwhelming support. Before Obamacare, millions of Americans who had cancer, multiple sclerosis or other diseases could be denied coverage because of their condition. At least 54 million have a pre-existing condition which would have been deniable before the ACA.

In an October poll, while only 55% of Americans said they have a favorable view of the ACA, 79% said they did not want the court to overturn its protections for people with pre-existing conditions, according to the Kaiser Family Foundation.

Without that protection, people who contract Covid-19 could be denied coverage, be charged higher premiums, or have future treatment for coronavirus turned down.

On Tuesday, the pandemic was largely absent from the justices’s questions. Much of the discussion focused on the question of standing, or whether the plaintiffs had the right to bring the case. The conservative justices seemed to indicate that they did.

The liberal justices were incredulous about the plaintiffs’ argument that the individual mandate had become a demand after its penalty was reduced to nothing. Justice Elena Kagan asked: “If you make a law less coercive how does it become more of a command?”

At the final presidential debate in October, the Democratic nominee, Joe Biden, said that if the ACA was struck down, he would pass Obamacare again, add the public option to get government health insurance and call it Bidencare.

The chance of such legislation passing depends on which party controls the Senate, something that will remain unknown until two runoff elections in Georgia in January.

The supreme court has until the end of June to rule on the case at hand.