A few weeks ago, the U.S. Department of Justice broke with precedent by refusing to defend the Affordable Care Act (ACA) from a lawsuit brought by Texas and 19 other states. Instead, the Department of Justice filed a brief asking the court to strike down the ACA’s protections for people with pre-existing conditions.
The Texas lawsuit alleges that Congress’ repeal of the penalty associated with the individual mandate as part of the 2017 tax law makes the mandate unconstitutional, and that the entire ACA must be struck down as a consequence. Legal experts across the political spectrum—including conservatives who supported previous legal challenges to the ACA—have sharply criticized this lawsuit as absurd and “beyond the pale.”
Nevertheless, the Department of Justice’s refusal to defend the ACA and intervention in support of the plaintiffs means that the lawsuit represents a real threat to the ACA—one that has grown more serious in light of Justice Anthony Kennedy’s retirement. Although this case is currently at the district court level, it could reach the Supreme Court as soon as next year.
Justice Kennedy played a key role in upholding major provisions of the ACA in King v. Burwell in 2015, although he had previously ruled against the ACA in NFIB v. Sebelius in 2012. Both challenges to the ACA were criticized by many legal commentators as lacking merit, yet they nevertheless came dangerously close to overturning major provisions of the ACA. As a presidential candidate, Donald Trump repeatedly criticized Chief Justice John Roberts for declining to rule against the ACA in these cases, implying that opposition to the ACA would be one of his litmus tests when nominating justices. For example, he tweeted in 2015, “If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.”
If Justice Kennedy is replaced by a more conservative justice, then the ACA’s pre-existing conditions protections—or even the entire law—could be at risk. Whether through the Texas lawsuit or another frivolous legal challenge yet to be imagined, conservatives will not rest until the Supreme Court guts or strikes down the law.
What would happen if the Texas challenge succeeds?
If the Texas case reached the Supreme Court, then there would be two major scenarios under which the ACA could be at risk.
Under the first scenario, the Supreme Court would rule with the plaintiffs, who asked that the entire ACA be struck down. The Urban Institute has estimated that this would result in 17.1 million Americans losing health coverage in 2019. Although much of the initial focus is on the threat to Roe v. Wade, the Texas challenge would also put women’s health at risk; the Supreme Court could strike down ACA benefits such as no-cost coverage of birth control and coverage of maternity care as an essential health benefit.
Under the second scenario, the Supreme Court would rule with the Department of Justice and strike down the ACA’s guaranteed issue and community rating provisions. These two provisions ban insurers from denying coverage to sick people and charging people higher premium rates based on their health status, respectively. While the rest of the ACA would remain in place, people with pre-existing conditions would lose critical protections and, once again, face discrimination from insurers. In addition, insurers could once again charge women higher premiums than they charge men and charge older individuals an exorbitant age tax in which premiums are more than three times higher than premiums for younger individuals.
CAP has previously estimated that, without these protections, people with pre-existing conditions in the individual market could face massive premium increases. For example, a 40-year-old could be charged an estimated $28,660 extra for breast cancer; $17,320 extra for pregnancy; and $142,650 extra for metastatic cancer. The highest premium increases would be in Alaska, where premiums would go up by more than double the national average for several conditions; a 40-year-old Alaskan could be charged about $76,100 extra for breast cancer and about $46,000 extra for pregnancy.
About 130 million nonelderly Americans have some type of pre-existing health condition. CAP has previously estimated the number of nonelderly people with pre-existing conditions in each state. For example, an estimated 548,300 people in Maine; 326,400 people in Alaska; and 2,763,200 people in Arizona have pre-existing conditions. An estimated 67 million women and girls across the country have pre-existing conditions, including 264,000 in Maine; 157,000 in Alaska; and 1,420,000 in Arizona.
Conclusion
Although Justice Kennedy’s retirement has deep ramifications for many progressive priorities, the looming legal threat to the ACA should not be overlooked. As senators prepare to consider President Trump’s forthcoming nomination for the court vacancy, they should remember that their constituents’ health care could be on the line.
Thomas Huelskoetter is the policy analyst of Health Policy at the Center for American Progress.