What's Next for the ACA?
The recent news about the passing of United State Supreme Court Justice Ruth Bader Ginsburg and nomination of Judge Amy Coney Barrett to replace her have brought the Supreme Court and a pending Affordable Care Act (ACA) lawsuit to the headlines and the top of mind for many members of the bleeding disorders community. Here’s what you need to know:
What is the California v. Texas lawsuit about?
The lawsuit relates to the ACA’s individual mandate. As written, the individual mandate requires people to purchase health insurance or pay a penalty when they pay their taxes. But in the late 2017 tax reform bill, Congress zeroed out the tax penalty for not having coverage starting in 2019. In February 2018, in then-titled Texas v. US, a group of Republican Attorneys General (AGs) filed a lawsuit which seeks to nullify the ACA entirely. They argue zeroing out of the individual mandate penalty makes the mandate unlawful. The AGs further argue that the individual mandate is an integral part of the ACA, so if the individual mandate is gone, then the entire ACA must also be found to be unconstitutional. In the first round of the case, a Texas judge agreed with this argument and ruled that the whole ACA should be thrown out. Upon appeal, the 5th Circuit Court of Appeals found that the individual mandate was no longer legal and directed the lower court to reconsider which parts of the ACA are related to that policy. Instead of going back to the judge in Texas. The case has now been appealed to the US Supreme Court, with oral argument to occur in November 2020 and presumably a final decision by Spring 2021. (Since it’s now a group of Democratic AGs lead by California appealing the lower decision, the case has switched names to California v. Texas.) As the case works its way through the legal system, it’s important to remember that it remains law.
What could happen now?
The US Supreme Court is scheduled to hear oral argument on the case in mid-November. If the Senate confirms Judge Amy Coney Barrett before then, then she would join the eight current justices in hearing argument and voting on the case. If she is not confirmed, it would be decided by the eight current justices. They have several legal options in reviewing the case, ranging from dismissing the case entirely based on procedural grounds, to finding just the individual mandate unconstitutional (which is more or less status quo), to invalidating some of the patient protections (since they are most closely related to the individual mandate), to invalidating the whole law. Despite dire headlines, most legal experts think it is unlikely that the entire ACA would be thrown out, but it is difficult to predict. In any event, experts agree that the case won’t ultimately be decided until June 2021. If the Court finds some or all of the ACA unconstitutional, then Congress can act to reinstate those parts or can pass a law reinstating the individual mandate penalty.
What is NHF doing?
It’s very important to remember that nothing changes about the ACA – including patient protections like the ban on pre-existing conditions protections and lifetime caps, subsidies to help people buy insurance, or the Medicaid expansion – unless and until the Supreme Court rules that those policies can’t continue next spring. In the meantime, open enrollment for 2021 marketplace plans will proceed as scheduled, beginning Sunday, November 1, 2020 through December 15, 2020.
Recognizing the importance of the ACA’s patient protections to the bleeding disorders community, NHF joined an amicus brief with a number of other leading patient advocacy groups to petition the Court. NHF will continue its advocacy on behalf of the bleeding disorders community and will update the community as any policy changes related to the ACA are implemented.