WASHINGTON — Sure, Amy Coney Barrett’s ascension to the Supreme Court will have a big effect on how healthcare cases at the court are decided. But it will also affect something else — which cases get to the court at all.
The Supreme Court “picks and chooses what cases they take on appeal, and it takes four votes to hear a case,” said Katie Keith, JD, MPH, an adjunct professor of law at Georgetown University who blogs for Health Affairs. With the death of Ruth Bader Ginsburg and her replacement with Justice Barrett, the court has gone from having four generally liberal justices to three, so there likely will be cases now that won’t even be heard by the high court because there aren’t enough votes to take them up, she said.
Fate of the ACA in Question
Ironically, California v. Texas, the current case before the court challenging the constitutionality of the Affordable Care Act (ACA), was likely one that the liberal justices voted to take up, Keith added. “The Trump administration and Texas asked the court not to take it up,” preferring to let the lower-court process play out. “They didn’t want this heard in an election year. I always said this case could be very different if the court changed, and here we are!”
The trial court ruled in favor of Texas and the 17 other states who were plaintiffs in the case, deeming the ACA unconstitutional because the law’s individual mandate had been zeroed out; a federal appeals court partially sided with the first court, agreeing that the mandate was unconstitutional, but also sending the case back to the trial court to determine whether the rest of the law could be “severed” from the mandate and thus survive. Now the Supreme Court is being asked to rule on the law’s constitutionality and, if it’s unconstitutional, whether parts of it can be severed from the mandate.
What will happen to the ACA now that Barrett is on the court, with oral arguments in California v. Texas slated for November 10? Dan Mendelson, founder of Avalere Health, a consulting firm here, said there are “two big issues” related to the law. “One is that 23 million Americans rely on the ACA for their insurance,” so if that part of the law is repealed, “there’s got to be some mechanism to figure out how those people are going to be getting insurance. But the other issue is that there is so much to the law unrelated to those exchanges — it contains treatment provisions, changes to Medicare Advantage payment rates, and all of the authorities for the Centers for Medicare & Medicaid Innovation.”
“If Trump wins the election and the court overturns the ACA, Congress is going to have to figure out how to get health insurance to 23 million individuals — leaving them without insurance is not a viable political option,” Mendelson said. “And if Biden wins, there will be a strong effort to codify the structure of the ACA so it is immune to further challenges, and so the guarantee of insurance for preexisting conditions can be codified.”
The Severability Issue
During her confirmation hearing before the Senate Judiciary Committee, Barrett was asked generally about the issue of severability — whether part of a law could reasonably be separated from the rest of it, and still stand. “The presumption is always in favor of severability,” Barrett said, adding that the question is what Congress intended when it passed the law.
Michael Sparer, PhD, JD, chair of the department of health policy and management at Columbia University in New York City, said in an email that Barrett’s comments on severability “were intended to counteract the notion that she is likely to declare the entire ACA unconstitutional in the event that the individual mandate were to be held unconstitutional. I take that caution with a grain of salt (she was trying to minimize the political pushback on her nomination), but I’m hoping it also means that she will be hesitant to have the court create a public policy crisis by striking down the ACA 10 years after its enactment.”
In 2017, Barrett wrote that Supreme Court Chief Justice John Roberts erred in his opinion upholding the ACA in a case called NFIB v. Sebelius; she said that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
Abortion Rights Also in Play
Abortion is another issue that Barrett will be called to weigh in on. Mary Ziegler, JD, professor of law at Florida State University in Tallahassee, noted in a phone interview that Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide, appeared to be starting to “unravel.”
Although the high court, in the June Medical Services v. Russo case, struck down a Louisiana law requiring physicians who perform abortions to have admitting privileges at a local hospital, “Roberts separately said that the test for future abortion regulations shouldn’t be as hard on states, and in particular, states shouldn’t have to prove that these laws serve any benefit,” said Ziegler. That is, if a state is saying that a certain law will protect patients from dangerous abortion procedures, “they don’t have to prove abortion is dangerous; all that matters is how much of a burden it is on abortion access.”
“So even before Barrett, it looked like states were going to have an easier time restricting access to abortion, particularly in settings where they could claim people disagreed about the science,” she continued. “Now, with Barrett, the odds are higher that you’ll have not just that but outright reversal of Roe, which will have the most quick and immediate effect on doctors, who will likely be punished first by states that are allowed to criminalize abortion … I expect to see more of that when Barrett is confirmed to the court.”
Ziegler said she expects that overturning Roe, if it happens, “will take a while,” since doing so quickly wouldn’t be good optics for the court. “More of what you’d have is the court upholding a restriction or two first … These people don’t want to be seen as partisans; they want to be seen as serious jurists,” so it’s not likely they’d overturn Roe as soon as Barrett takes her seat on the court, she said.
Other healthcare cases are in the pipeline too, and they may eventually make it to the Supreme Court, said Keith, of Georgetown. These include one related to the Trump administration’s regulations on short-term limited duration health plans, as well as cases involving cuts to provider payments in the 340B program, regulations on site-neutral payments for procedures, and cost-sharing reduction payments to health insurers, she said.