WASHINGTON — The Supreme Court agreed Monday to hear a third major challenge to the Affordable Care Act, setting up likely arguments this fall in a case that could wipe out President Barack Obama’s signature domestic achievement.
The court granted requests from Democratic state officials and House members who wanted to thrust the fate of the Affordable Care Act into the public eye just as Americans prepare to vote this November. The Supreme Court did not say when it would hear the case, but under its ordinary practices, arguments would be held in the fall, and a decision would land in the spring or summer of 2021.
Democrats, who consider health care a winning issue and worry about possible changes in the composition of the Supreme Court, had urged the justices to act quickly even though lower courts had not issued definitive rulings. They wanted to focus political attention on the health law’s most popular provisions — like guaranteed coverage for preexisting medical conditions, emergency care, prescription drugs and maternity care — and to ensure that the case was decided while justices who had rejected earlier challenges to the law remain on the court.
In the meantime, the law remains almost entirely intact but faces an uncertain future.
The case the justices will hear was brought by Republican state officials, who argued that when Congress in 2017 zeroed out the penalty for failing to obtain health insurance, lawmakers rendered the entire law unconstitutional. The Trump administration sided with the state officials, arguing that the rest of the health care law could not survive without a penalty for flouting the requirement that most Americans have health insurance, sometimes called the individual mandate.
A U.S. District Court judge in Texas agreed, ruling that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In December, the U.S. Court of Appeals for the 5th Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.
The Democratic states and the House, which intervened in the case to defend the health law, asked the Supreme Court to put its consideration of whether to hear the appeal on an unusually fast track. The court turned down that request in January.
Having lost that fight, the states and the House asked the court to hear their appeal in the ordinary course. They said Supreme Court review was warranted because part of a federal law had been held to be unconstitutional, which is often reason enough for the justices to agree to hear a case. They added that the lower courts’ rulings had created doubt about the balance of the law.
“The uncertainty created by this litigation is especially problematic because individuals, businesses, and state and local governments make important decisions in reliance on the ACA,” lawyers for the states wrote. “Prolonged uncertainty about whether or to what extent important provisions of the ACA might be invalidated makes these choices more difficult, threatening adverse consequences for American families, health care markets and the broader economy.”
In urging the court to deny review, the Trump administration said that the justices should wait for a definitive ruling from the lower courts.
“Immediate review is unwarranted in the case’s present posture,” the administration’s brief said, “because the court of appeals did not definitively resolve any question of practical consequence.”
One issue that could be particularly consequential for the election is the threat the case poses to the law’s protections for people with preexisting conditions. Those protections, which bar insurers from denying coverage to people with past or chronic illnesses or charging them more, are popular with Americans of all political persuasions. Democrats made them a huge focus of their successful 2018 effort to retake the House and will undoubtedly put them front and center again now.
“Thanks to Donald Trump, preexisting condition protections are on the chopping block this fall,” Sen. Ron Wyden, D-Ore., said in a statement shortly after the court’s announcement Monday. “Americans who count on their health care will hear loud and clear who is fighting to secure protections for preexisting conditions and who is trying to take them away.”
Another of the law’s provisions that might gain political salience this campaign season, as the coronavirus becomes a serious concern, is its requirement that insurance plans cover vaccinations at no cost.
“This case is a stark, life-and-death reminder how much is at stake this fall and what’s on the ballot right now: Democrats must nominate the candidate whom they know can beat Trump and bring along the Senate, to ensure we can protect our health care for generations to come,” Vice President Joe Biden said in a statement.
The public has remained deeply divided on the health law since it passed a decade ago this month, but in February it reached its highest favorability rating since the Kaiser Family Foundation started measuring public opinion shortly after the law’s passage. The latest Kaiser poll found that 55% of the public supported it and that repealing the law was no longer the top health care issue for Republican voters, a sharp contrast from 2016.
Of the remaining Democratic presidential candidates, Biden and Michael Bloomberg, the former mayor of New York, strongly support keeping and improving the Affordable Care Act. Sens. Bernie Sanders of Vermont and Elizabeth Warren of Massachusetts favor doing away with it, and all private insurance, and instead creating a “Medicare for All” national health insurance program run by the federal government. Rep. Tulsi Gabbard of Hawaii supports Medicare for all who want it and wants to preserve private insurance as an option.
California’s attorney general, Xavier Becerra, a Democrat, said the case, California v. Texas, No. 19-840, underscored the two sides’ differing approaches to the Affordable Care Act.
“We should all be working to improve health care, instead of ripping coverage away from those most in need,” he said in a statement. “As Texas and the Trump administration fight to disrupt our health care system and the coverage that millions rely upon, we look forward to making our case in defense of the ACA. American lives depend upon it.”
The Trump reelection campaign released a statement focused on the Democrats’ “Bernie Sanders-inspired, socialist health care agenda,” with no mention of the lawsuit or the Affordable Care Act.
Attorney General Ken Paxton of Texas, the state leading the lawsuit, issued his own statement saying the entire law was “unsupportable” now that the appeals court had agreed the individual mandate was unconstitutional, adding, “I look forward to finally settling the matter before the U.S. Supreme Court.”
Robert Henneke, the lawyer representing two individual plaintiffs in Texas in the case, emphasized the growing support of some Democrats for a single-payer health system, saying in an interview: “The left will be demagoguing this lawsuit, but I think it’s a bit disingenuous, given that a large number of their elected officials have moved toward Medicare for All and single-payer health care.”
There was no immediate reaction from the Justice Department.
The Supreme Court has already ruled in two major cases challenging core provisions of the health law. In both cases, it left most of the law in place.
In 2012, the court upheld the law’s requirement that most Americans obtain insurance or pay a penalty, saying it was authorized by Congress’ power to assess taxes. The vote was 5-4, with Chief Justice John Roberts writing the controlling opinion, which was joined in its key section by the court’s four-member liberal wing.
In 2015, the court said the federal government can provide nationwide tax subsidies to help poor and middle-class people buy health insurance, rejecting an argument that the subsidies were only available in states that had created marketplaces, known as exchanges, to allow people who lack insurance to shop for individual health plans. A contrary ruling would have created havoc in the insurance markets and undermined the law.
The vote was 6-3, with Roberts and Justice Anthony Kennedy joining the court’s four more liberal members to form a majority.
Kennedy retired in 2018, but the remaining members of the majorities in the two cases are still on the court.
The number of uninsured Americans younger than 65 decreased by 18.6 million from 2010, when the health law was passed, to 2018. Most of them gained insurance through expanded Medicaid, the government insurance program for the poor; others got coverage through new private insurance options, often with subsidies to help cover the cost, or, for adults younger than 26, through their parents’ health plans.