The Supreme Court, hearing arguments Tuesday on the possible repeal of the Affordable Care Act, appeared disposed to upholding the law.
Eighteen Republican-led states want the ACA struck down as unconstitutional, as does Donald Trump's administration, while a coalition of Democratic-controlled states, led by California, and the U.S. House of Representatives want it to remain in place. The law, a signature achievement of President Barack Obama's administration, makes affordable health insurance available to many who would not otherwise have it, and it bars insurers from discriminating against people with preexisting conditions, among other provisions. LGBTQ+ Americans have a higher incidence of preexisting conditions than the population as a whole, and being transgender is in itself a preexisting condition.
Congress in 2017 made the law's so-called individual mandate unenforceable. The mandate imposed a fine on those who did not buy health insurance and were not otherwise covered, in an effort to assure that healthy people do not opt out of the insurance pool, which could have the effect of raising prices for everyone else. Congress revoked the fine for the uninsured.
"Tuesday's case posed three questions: Do the challengers -- two individuals and 18 states led by Texas -- have legal standing to bring the case?" The Washington Post explains. "Did changes made by Congress in 2017 render unconstitutional the ACA's requirement for individuals to buy insurance? And if so, can the rest of the law be separated out, or must it fall in its entirety?"
Opponents of the ACA are still arguing that the mandate makes it unconstitutional. "It is a naked command to purchase health insurance, and as such, it falls outside Congress's enumerated powers," Kyle Hawkins, solicitor general of Texas, said in court Tuesday, the Post reports.
But in a 2012 case challenging the ACA, Chief Justice John Roberts said the mandate and the associated fine were constitutional because they fell under Congress's powers to impose taxes. The fine, he said, was equivalent to a tax. But Hawkins said since the mandate no longer raises revenue for the government, it doesn't fall under the taxation powers.
The newest justice, Trump appointee Amy Coney Barrett, appeared sympathetic to Hawkins's position. "Why couldn't we believe when Congress zeroed out the tax that it was no longer a tax because it generated no revenue?" Barrett said in the hearing Tuesday. She has been critical of the 2012 decision.
But Roberts and another conservative justice, Trump appointee Brett Kavanaugh, pointed out that Congress could have repealed the entire law in 2017 instead of just revoking the fine. The fact that it didn't indicates it wanted the law to stand, they said.
"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," Roberts told Hawkins. For the court to invalidate the law when Congress declined to do so would be overstepping its authority, Roberts said.
To a lawyer defending the ACA, Kavanaugh said the mandate could be separated from the rest of the law. "I tend to agree with you this [is] a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place," the justice said.
This was a point made by Donald B. Verrilli Jr., who was solicitor general in President Barack Obama's administration. He defended the law on behalf of the administration in 2012 and did so Tuesday on behalf of the U.S. House of Representatives. He also noted that striking the ACA down now would mean 20 million Americans would lose coverage during a pandemic, plus the insurance market would be disrupted.
"To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation and reality and jurisprudentially inappropriate," Verrilli said.
"In view of all that transpired in the past decade, the litigation before this court, the battles in Congress, the profound changes in our health care system, only an extraordinarily compelling reason could justify judicial invalidation of this law at this late date."
Liberal justices, as expected, seemed inclined to uphold the ACA. By removing the penalty for the uninsured, Congress made the law "less coercive" than before, Justice Elena Kagan said. "How does it become more of a command?" she queried.
Another liberal, Sonia Sotomayor, questioned how residents of states suing over the ACA were harmed now that the penalty has been revoked; if they are not, the states wouldn't have standing to challenge the law. "At some point, common sense, seems to me, would say, 'Huh?'" she said.
A ruling on the case is expected late next spring.