Campaign 2016 Issue Brief #5: The ACA and the Supreme Court

This is the fifth in a series of issues around health reform and the Affordable Care Act. Next week: Medicaid.

The Supreme Court of the United States (SCOTUS) is perhaps the most powerful of the three branches of our government, especially in the context of reforms to our health system. It has the authority to overturn laws and actions passed by the other branches including every dimension of the Affordable Care Act.

It receives approximately 10,000 petitions per year (a brief requesting the Supreme Court to hear the case), and grants certiorari in about 80 of those cases. Since passage in March 2010, it has rendered decisions on three major challenges to its constitutionality with others pending or working their way through the lower courts.

And with the vacancy resulting from the death of Justice Scalia, it’s sure to be a key focus in Campaign 2016 as President Obama or his successor in the White House appoints his replacement.

Major SCOTUS decisions re: the ACA to date: the three major cases heard and rulings rendered to date re: the law include:

National Federation of Independent Businesses v. Sebelius and Florida v. United States Department of Health and Human Services.

1-Is the minimum coverage provision of the ACA barred by the Anti-Injunction Act?[1] No.

2-Does Congress have power under Article I, Section 8 of the Constitution, specifically under the Commerce Clause or the Taxing and Spending Clause, to require most Americans to purchase health insurance?  Yes, under the Taxing and Spending Clause of the U.S. Constitution.

3-Is the individual mandate severable from the ACA?  Unanswered (by majority).

4-Did Congress exceed its enumerated powers and violate principles of federalism in compelling states to abide by conditions with threat to withhold all federal funding under Medicaid.  Yes.

Decided consolidated case: June 28, 2012.

Burwell v. Hobby Lobby Stores, Inc.

Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to “deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company's owners?” No. The Court held that HHS regulations requiring employer-sponsored health plans to include FDA-approved contraceptives among the preventive services covered with no-cost access violates the Religious Freedom Restoration Act (RFRA)

Decided: June 30, 2014.

King v Burwell

Did the Internal Revenue Service “permissibly create a regulation that extended the tax credits the Affordable Care Act authorized to federal exchanges as well as those created by the states?” Yes.

Decided: June 25, 2015. Subsidies provided through federal exchanges are available to those enrolled.

In addition to these, the court is expected to rule by June 30 on the law’s requirement that qualified health plans offered by employers include an option for contraception. The court heard arguments last month in 7 cases where petitioners affirmed that this provision is a violation of their rights under the Religious Freedom Restoration Act(Zubik v Burwell, Priests for Life v HHS, Roman Catholic Archbishop of Washington v Burwell, East Texas Baptist University v Burwell, Little Sisters of the Poor Home for the Aged v Burwell, Southern Baptist University v Burwell, and Geneva College of Virginia v Burwell)

And a fifth case SCOTUS might hear is U.S. House of Representatives v. Burwell, a challenge to the cost-sharing subsidies based on the constitutional provision “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” On July 30 2014, the GOP led House passed H.R. 676 authorizing Speaker Boehner to pursue a claim against the government that the ACA’s subsidies were not specifically authorized by Congress and are therefore unconstitutional. The claim was filed in the D.C. Circuit Court where Judge Rosemary Collyer determined (September 9, 2015) the lower court had no authority jurisdiction to adjudicate the matter thus allowing to proceed to higher courts for a decision.

So what?

The Supreme Court is the ultimate authority for the U.S. system’s the legal framework. It is the arbiter for disputes such as these related to the Affordable Care Act and the broader set of issues that are foundational to the way it operates. Case in point: its 1973 Roe v. Wade decision that overturned a Texas lower court affirming the right of a woman, with her physician, could choose abortion in earlier months of pregnancy without legal restriction, and with restrictions in later months, based on the right to privacy.

A number of issues arising from the Affordable Care Act might find their way to the high court eventually:

  • Can provider organizations be required to accept financial and clinical risk for their patients? That’s the law.
  • Are limits on the business practices of physicians constitutional? The law imposes limits on physician ownership and expands public access to information about their activities.
  • Do states have the authority to circumvent the federal government in determining how insurance coverage should be defined and provided? That’s central to the law’s notion of essential health benefits and qualified health plans.
  • And can individuals who choose not to purchase coverage be held accountable through means other than a penalty? It’s an issue still pending.

I was at the Supreme Court June 28, 2012 when the SCOTUS ruling on NFIB v Sebelius was announced. Journalists raced to their reporting duties to announce the law had survived the four challenges addressed in the challenge. The law stood, with only the Medicaid expansion mandate for the states excepted. Then, as now, the law has withstood legal challenges that would render it moot.

In the current political climate, consideration of Merrick Garland to succeed Justice Scalia is the focus: will the Senate hold confirmation hearings this year, or be delayed until after the election when the next occupant of the White House steps in—that’s the political chess match being played.

But the larger question is this: how will the Supreme Court address the larger issues of our complicated, expensive health system as challenges arise. Is health care in the U.S. a right or a privilege? Is our pluralistic health system that’s both public and private its future, or will a single payer replacement find its way into our way of financing and delivering health services to our citizenry? And what role does personal accountability for healthy lifestyles and smart decisions about the health services we use play in our system of rewards and repercussions?

No doubt, these questions will surface and  find their way into our judicial system’s deliberations. And in Campaign 2016, the potential that the next President will make at least two appointments to the high court a major factor in the election.

The Supreme Court has been the ultimate deliberator over the big issues in our society since its founding in 1790. There’s no doubt the future of the health system will find its way to the steps of the high court again as our republic seeks to define its role and how it should operate.

Paul