Three strikes and you’re out it is said in baseball lingo. For Republicans, the 18 Red states, and the two individuals that challenged the Affordable Care Act (otherwise known as Obamacare), they have now had their three strikes too.
On June 16, the Supreme Court in a 7-2 decision written by Justice Breyer, upheld the Patient Protection and Affordable Care Act, the nation’s first national health care law. Initially enacted into law in March 2010, Obamacare had survived two previous high court rulings since 2012 along with scores of Republican-led legislative challenges. Three times attacking ACA within nine years should be the death knell to any more challenges to it.
The most recent case is California et al. v. Texas, et al, and the majority consisted of the Court’s liberal wing – Breyer, Kagan, and Sotomayor – along with Chief Justice Roberts and Associate Justices Kavanaugh and Barrett joining in, with Justice Thomas concurring. As one columnist has now written, “Its future now seems secure and its potency as a political issue for Republicans reduced.”
Justice Alito joined Gorsuch in dissent, maintaining the states suffered a recognizable injury to proceed. Alito wrote in his dissenting opinion: “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”
The Court ducked the merits of any of the substantive issues presented by the parties, declaring, instead, that the plaintiffs had no ability to be in court; they did not suffer any sort of past or future injury the law would recognize to give them what we call “standing” to sue. As he said in his concurrence, conservative Justice Thomas opined,
“Whatever the act’s dubious history in this court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act—they have not identified any unlawful action that has injured them. Today’s result is thus not the consequence of the court once again rescuing the act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.”
To understand the words of this jurist, one must recall Trump’s tax law passed in 2017 that, among its many other provisions, zeroed out the penalty for not purchasing health insurance required by ACA called the “individual mandate.” Even with the mandate gone, the plaintiffs in this third case claimed they still incurred an injury due to cognizable relief under the law. But the seven Justices held that without a penalty for noncompliance (again, having to buy insurance), no such injury could ever arise as there can be no remedy the law recognizes that will redress either the individuals’ or the states’ claims.
So where do we go from here? First, the decision must be more than significant when it comes to obtaining and maintaining our health care. Years ago, I counseled Members of Congress about the program leading up to the ACA’s passage, and I have argued many times in over a decade on the fundamental need to provide health care to all the nation’s citizens. Without our health, each one of us is unable to contribute positively towards society and our families – akin to a ship without its rudder.
The decision must also be viewed considering the COVID-19 pandemic, which has cost the U.S. over 600,000 lives and millions more infected. Those statistics are alarming enough, but there are also the hundreds of thousands who lost their jobs, which often meant their company-provided health insurance. The ACA became a lifeline for them.
Now that the multiple threats to the ACA from the Trump administration are in the rearview mirror, President Biden is providing more sign-up opportunities through the ACA for those not insured – over 1.2 million at last count. This adds to the nearly 31 million for whom ACA has provided coverage.
Though the law provides substantial protections, like coverage for pre-existing conditions, improvements to the law are not out of the question. In the future, the protection can be even more effective like inserting a government-backed or funded public option to compete with the private insurance markets. Colorado, Nevada, and Washington state already have their own public options.
Coincidentally, the Supreme Court’s decision was the same day establishing “Juneteeth” as the latest federal national holiday. How can this event be juxtaposed to the ACA decision? As freedom from slavery is now to be recognized as a federal holiday, we should now push for the right to our health without fear that our healthcare will be stripped away by the politically motivated.
Since it was enacted in 2010, the ACA’s popularity among the electorate on both sides of the aisle is extremely apparent. Moving forward, if it is to be changed or gutted it will be up to Congress and not the Supreme Court to do so. Now that the latest challenge to the ACA has been shot down, I believe we have ushered in a new mandate to expand healthcare and begin to codify that our healthcare is a universal right.
Our Declaration of Independence spoke of the unalienable right for “life, liberty and the pursuit of happiness,” and it’s about time we realize that we treat life and health as one and the same.
Miles J. Zaremski
A graduate of Case Law School in Cleveland, Miles Zaremski is the longest-serving chair of the American Bar Assoc.’s Standing Committee on Medical Professional Liability and a past president of the international organization, The American College of Legal Medicine.