A moving display of mourners congregated Friday night to celebrate the passing of a true champion and trailblazer, Justice Ruth Bader Ginsburg, the “Notorious RBG” – a nickname she welcomed. It was rumored that she stocked t-shirts as gifts. She and Notorious B.I.G. shared a birthplace, though years apart. When asked if the name was appropriate, she commented that it was a “natural fit.”
Since its passage, the Affordable Care Act has survived numerous “near death” experiences. Another one now looms in November when the Health Care Repeal Lawsuit (California v Texas) is argued before a Supreme Court remade by the untimely death of Justice Ginsburg and very possibly by the addition of a third Trump appointment.
Given the flaws in plaintiff’s arguments, prior to Justice Ginsburg’s death, the most likely outcome of the case was that the ACA would be sustained with the Individual Responsibility Requirement or “individual mandate” struck down and severed from the remainder of the law. Clearly Justice Ginsburg’s passing has elevated the threat of losing the coverage expansion, protections for people with pre-existing health and serious medical conditions, and more. With the “swing vote” on the court belonging to either Justice Gorsuch, Kavanaugh or a new appointee (rather than Justice Roberts who has already voted twice to sustain the ACA), the chances of an adverse outcome have certainly gone up. That said, it is too soon to count the ACA out.
Many legal analysts, including some conservative opponents of the ACA, believe that the case against the ACA is so weak that even a reconfigured court would find it difficult to vote for anything more than discarding the individual mandate. Another possibility is that Roberts would be able to reach an agreement with the other conservatives on which provisions should stay or go. If for example a majority ruled that only the individual mandate and the related insurance market rules had to go (the original position of the Department of Justice), it would touch off a wave of insurance reform fights at the state level and in Congress. But with federal funding still intact, the ACA would continue to operate in most states and, like the Medicaid expansion fights currently underway, we could anticipate winning many of those state fights.
Another path forward for the ACA requires a Biden win and a Democratic Senate. Even if Senator McConnell is able to ram through another Supreme Court nominee hostile to the ACA, Democratic control of the House, Senate and White House could nullify an adverse court decision by restoring some sort of penalty for not having coverage, adding a severability clause to the law, or striking the penalty altogether. There are some procedural, timing and budget scoring complexities to a legislative fix, but it is safe to assume that a Democratic majority would be highly motivated to find a way to resolve those issues.
Clearly, this is a complex web of “what ifs” with multiple phases of advocacy work. Right now, our focus should be to raise the alarm about any nominee to the high court that would threaten the ACA (along with many other critical issues including reproductive rights and immigration). We already know what the implications are: 135 million people will lose protections for pre-existing conditions and more than 20 million people—disproportionately Black and Latinx people who have been historically underserved—will lose coverage.
The tragic loss of RBG threatens the progress we have made toward achieving affordable coverage and care for all. Repealing the ACA without any replacement has been a goal of congressional Republicans since the law passed and the Trump administration has made it a top priority to overturn the ACA since they took office. They have pursued that goal relentlessly and even a pandemic and the worst economic crisis since the Great Depression have not caused them to rethink their position.
But the risks are not new and the stakes are clear. While we are saddened by the loss of one of the great champions of equality, democracy and equity, we are inspired by the tenacity of the “Notorious RBG.” And together we know we can advance a shared vision of justice that includes equitable access to health care for all.