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'Obamacare' likely to survive, high court arguments indicate

'Obamacare' likely to survive, high court arguments indicate
Posted at 1:53 PM, Nov 10, 2020
and last updated 2020-11-10 17:07:28-05

WASHINGTON (AP) — A more conservative Supreme Court appears unwilling to do what Republicans have long desired — kill off the Affordable Care Act.

That includes its key protections for pre-existing health conditions and subsidized insurance premiums that affect tens of millions of Americans.

The justices met a week after the election and remotely in the midst of a pandemic that has closed their majestic courtroom to hear the highest-profile case of the term so far.

They took on the latest Republican challenge to the law known as “Obamacare,” with three appointees of President Donald Trump, an avowed foe of the health care law, among them.

But at least one of those Trump appointees, Justice Brett Kavanaugh, seemed likely to vote to leave the bulk of the law intact, even if he were to find the law’s now-toothless mandate that everyone obtain health insurance to be unconstitutional.

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Kavanaugh said.

Chief Justice John Roberts, who wrote two earlier opinions preserving the law, stated similar views, and the court’s three liberal justices are almost certain to vote to uphold the law in its entirety. That presumably would form a majority by joining a decision to cut away only the mandate, which now has no financial penalty attached to it. Congress zeroed out the penalty in 2017, but left the rest of the law untouched.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that’s not our job,” Roberts said.

Tuesday’s arguments, conducted by telephone and lasting two hours, reached back to the earlier cases and also included reminders of the coronavirus pandemic. The justices asked about other mandates, only hypothetical, that might have no penalties attached: To fly a flag, to mow the lawn or even, in a nod to current times, to wear a mask.

“I assume that in most places there is no penalty for wearing a face mask or a mask during COVID, but there is some degree of opprobrium if one does not wear it in certain settings,” Justice Clarence Thomas said.

The court also spent a fair amount of time debating whether the GOP-led states and several individuals who initially filed lawsuits had the right to go into court.