Health insurance for millions in peril -- Nov. 5, 2020 column

By MARSHA MERCER

With the future of health care in limbo during the prolonged presidential election, the Supreme Court next week will take up a case that could yank health insurance from 23 million Americans during a pandemic.

On Tuesday, the court will hear oral arguments in California v. Texas, which questions whether the Affordable Care Act, a.k.a. Obamacare, is constitutional. What the court ultimately decides could affect nearly every American family, not just those who buy their insurance through Obamacare.

Republicans have long argued Congress overstepped its authority when it imposed the individual mandate, requiring most Americans to buy health insurance or pay a penalty.

In 2012, the court upheld Obamacare 5 to 4. Chief Justice John Roberts, siding with the more liberal justices, wrote that since the penalty was collected by the IRS, it could be considered a tax and Congress has the power of taxation.

In 2017, Congress zeroed out the penalty. A group of red states challenged Obamacare, arguing a zero penalty means there is no tax and the law is unconstitutional. The Trump administration backs the red states.

After rounds in federal courts, a group of blue states supporting the law asked the Supreme Court to review the issues. The House is also defending the law, which remains in effect.

This time, conservative justices hold a 6 to 3 advantage. In a sign of the significance of the case, the court has lengthened arguments from the usual 30 minutes to 40 minutes for each side side.

Tuesday’s arguments may give us a glimpse into the mind of Justice Amy Coney Barrett, who said at her confirmation hearing, “I am not hostile to the ACA,” although as a law professor she wrote an article criticizing Roberts’s reasoning in the 2012 decision.

The current case raises the doctrine of severability -- whether a law can still stand if part of it is struck down. Barrett said she has not talked or written about severability.

The highest court could let Obamacare stand, abolish it entirely or do something in between. A ruling is expected by summer.

No one argues Obamacare is perfect. Many Americans bristled at being told they had to buy insurance, at paying a penalty if they failed to do so and at the cost.

But. Under Obamacare, insurance companies may no longer deny coverage to people with preexisting conditions like cancer, diabetes or sleep apnea; charge them higher premiums, subject them to long waiting periods or cap their benefits.

About 54 million Americans under 65 – or 27% -- have a preexisting condition that, before Obamacare, insurance companies could use to decline coverage on the individual market, an analysis by the Kaiser Family Foundation found. In Virginia, about 1.3 million people under 65 – or 26% -- have such conditions, the report said.

Besides protecting those with preexisting conditions, Obamacare also prevents insurers from charging women more than men, permits children to stay on their parents’ insurance policies until age 26 and offers subsidies to some customers to help pay premiums.

Most Americans get their insurance through their employers or a government program like Medicare or Medicaid, but no one knows when a job loss, divorce or other life event may require buying insurance on the individual or non-group market.

The pandemic and economic downturn prompted an additional 3 million Americans to seek help, raising the number covered under Obamacare to 23 million, according to the liberal-leaning Center for American Progress.

In the absence of Obamacare, COVID-19 could be considered a preexisting condition, and survivors could be denied health insurance.

President Donald Trump has promised since 2016 to repeal and replace Obamacare with something better and cheaper but has never presented a replacement plan.

He issued an executive order on preexisting conditions in September that experts said was symbolic and had no practical effect.

Obamacare has withstood more than 70 Republican attempts at repeal in the House and many judicial challenges.

Before the election, when it appeared the Senate and White House might flip blue, both Democratic presidential nominee Joe Biden and House Speaker Nancy Pelosi said they would work to strengthen Obamacare.

A Republican Senate led by Mitch McConnell makes meaningful change more difficult and raises the stakes for what the court decides.

Republicans and Democrats need to work together to write a law that works and people will accept. America will be healthier for it.

©2020 Marsha Mercer. All rights reserved.