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October 27, 2020

Health Policy in the Supreme Court and a New Conservative Majority

Author Affiliations
  • 1O’Neill Institute for National and Global Health Law, Georgetown University, Washington, DC
  • 2Northeastern University, Boston, Massachusetts
  • 3Milken Institute School of Public Health, George Washington University, Washington, DC
JAMA. 2020;324(21):2157-2158. doi:10.1001/jama.2020.21987

Within 8 days of the death of Ruth Bader Ginsburg—a pioneer of women’s rights and a liberal icon—President Trump nominated Judge Amy Coney Barrett to fill her seat. Her elevation to the Supreme Court will have profound consequences for health care and policy.

Justice Barrett opposed the Supreme Court’s 2012 decision upholding the Affordable Care Act (ACA). In California v Texas,1 to be argued on November 10, the Court will decide whether legislation zeroing-out the ACA’s “shared responsibility” tax penalty renders the individual mandate unconstitutional and if so, whether the entire law must be invalidated. If the Court strikes down the law, insurance safeguards will be eliminated, including protection against preexisting condition exclusions. Invalidating the ACA could cause 20 million people to lose subsidized coverage, with the number of uninsured increasing to 50 million people. With the coronavirus disease 2019 (COVID-19) pandemic and rising unemployment, the consequences could not be greater.

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    2 Comments for this article
    Don't Be So Certain Judge Coney-Barrett will Provoke Massive Change.
    Loren Bartels, MD, FACS | University of South Florida
    First, Justice Barrett has said repeatedly that legislation is the purview of legislatures. As a conservative jurist, she seems likely to uphold constitutionally valid laws. The Roberts SCOTUS clearly validated the ACA as a tax law. That the tax amount is now zero is clearly dysfunctional and makes it highly likely that some folks eligible for ObamaCare will choose not to pay monthly premiums. That decreases the efficacy of the argument that taxing folks who refuse to purchase health insurance will motivate them to comply with the law; but a zeroed out tax penalty may well not change the law. The zeroing out of the tax liability did not change the legal mandate to carry insurance but it means there is no enforcement. While arguing is fine, what is clear from SCOTUS behavior is that only a narrow view of the ACA is likely to be considered and, thus, Justice Barrett seems highly unlikely to be party to invalidating the ACA.

    That said, the ACA is in severe need of revision in many respects, not the least of which are the hidden taxes that the ACA fosters: cost burdens are obscurely shifted to private health insurance premiums; drug pricing is nonsensical; the high deductibles and copays make those covered under ObamaCare much less likely to attend health care providers for non-urgent/non-emergent care. In reality, the ACA is a hospital indigent acute care law saddled with much clumsy baggage. It badly needs the attention of the next Congress and POTUS.
    ACA And Its Faults
    Paul Nelson, MS, MD | Family Health Care, PC retired
    Regardless of Judge Ginsburg's replacement, correcting the faults within the ACA 2010 still remain. There is no basis upon which to view the ACA 2010 as decreasing our nation's annual increase in health spending as a portion of our national economy. A Supreme Court decision to declare the ACA 2010 as unconstitutional either totally, partially, or virtually untouched still requires Congressional Action.

    Meanwhile, our nation's health spending will continue to be a major contributor to our nation's annual Federal deficit; and maternal mortality, adverse childhood events, childhood obesity, adolescent adverse events (pregnancy, suicide, & homicide),
    substance addiction, homelessness, mass shootings, preventable midlife mortality from despair, and stagnant longevity at birth (for 10 years) will continue.

    The oddity about the new grouping of Supreme Court Judges is the situation that might occur when the Chief Justice is not voting with the majority opinion. In that case, the Justice voting with the majority who has the most seniority chooses the Justice who writes the final opinion for the majority: Justice Thomas.