From WVU Today:
MORGANTOWN, W.Va. — Anne Lofaso of the West Virginia University College of Law says it will be important to watch how the newest member of the U.S. Supreme Court interacts with Chief Justice John Roberts as the high court hears arguments beginning Tuesday (Nov. 10) that could decide the fate of the Affordable Care Act, commonly known as Obamacare challenging its constitutionality.
Her law school colleague Valarie Blake, who has studied the ACA and intersections between health care delivery and ethics, believes it would be tough for the court to “justify a complete repeal.”
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“The case specifically challenges the ACA’s individual mandate, a portion of the ACA that requires all families, with a few exemptions, to have minimum essential health coverage. In 2012, the individual mandate was upheld as constitutional in NFIB v. Sebelius, but since then the composition of the Supreme Court has drastically changed, particularly with the death of Justice Ruth Bader Ginsburg and her replacement with Judge Amy Coney Barrett, who wrote in 2017 (when she was a professor at Notre Dame Law) the following: ‘Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.’”
“It is important to closely watch what now Justice Barrett does at oral argument because she may be the deciding vote. While Barrett’s written words as a law professor do not bode well for the ACA’s vitality, Justice Roberts may be able to convince her or another Justice to uphold the ACA’s constitutionality on stare decisis grounds—a principle used by judges to refuse to overrule a current case based on past judicial rulings.”
“However, even if the Court does find the individual mandate unconstitutional, it might sever that provision from the rest of the ACA. Accordingly, the ACA would remain the law without the individual mandate. This would still be problematic because the individual mandate ensures a healthy risk pool, thereby making healthcare affordable and sustainable. In other words, the ACA would likely fall apart as financially unsound if the individual mandate is severed.” —Anne Lofaso, Arthur B. Hodges Professor of Law, WVU College of Law. Contact: [email protected]
“People with preexisting conditions wait with bated breath as yet another legal challenge to the ACA plays out in the Supreme Court. It is possible that conservative justices may strike down the individual mandate as unconstitutional, if they hold that it is no longer functioning as a tax. However, for the justices to find that provision inseverable from the rest of the act and to strike down the whole of the ACA seems unlikely and extreme. The question is whether Congress would have passed the rest of the ACA had it known the individual mandate were to be struck down. The 900-some page statute and the countless ways the statute has shaped the lives of patients, providers and insurers suggest that, yes, the ACA is much more than the individual mandate. Even justices hostile to the law, or to Justice John Roberts’ former saving of it as a tax, will find it hard to justify a complete repeal.” —Valarie Blake, Professor of Law, WVU College of Law. Contact: [email protected]
“While political and constitutional debate has continued and ensued over the Affordable Care Act, the ACA’s legacy in West Virginia and elsewhere is considerable in terms of extending healthcare coverage and consumer protections to many. In our state, ACA’s Medicaid expansion provisions have been a game changer, providing coverage to many who previously did not have insurance. This has benefitted not only those now covered by Medicaid, it has also benefitted our healthcare infrastructure by providing needed funding. The ACA has also provided important consumer protections for individuals with preexisting conditions which has made healthcare insurance more accessible to many in our state.” —Christopher Plein, Professor of Public Administration, Eberly Family Professor for Outstanding Public Service. Contact: [email protected]