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November 13, 2020
So Much For That –– Issue #107

Republican candidates were pummeled with ads during their campaigns this fall, with opponents warning of the the dark and foreboding consequences of “stripping health coverage away from millions of people” who also would lose their pre-existing condition protections if the latest challenge to Obamacare were to succeed.  The issue was front and center in Senate confirmation hearings for now-Supreme Court Justice Amy Coney Barrett.

Oral arguments on the case were heard on Tuesday before the U.S. Supreme Court.  As we anticipated, there is little or no chance the court would so significantly reverse course and declare the entire Affordable Care Act unconstitutional because the individual mandate no longer contains a tax penalty.
 
The Washington Post headline a week after election day: “Supreme Court appears ready to uphold Affordable Care Act over latest challenge from Trump, GOP.”
 
So much for the biggest campaign issue of the year and bludgeoning of conservatives.  A majority of Justices signaled they didn’t buy in to the argument that the entire law should be struck down because the tax for not having health insurance has been zeroed-out.
 
Chief Justice John Roberts noted on Tuesday that the mandate had in the earlier case been said to be “the key to the whole act.”  In 2012, he saved the law when he decided that the unconstitutional mandate to purchase private health insurance was redefined as an optional tax.
 
There was a bit of poetic justice when the Chief seemed to acknowledge that maybe that has been proven wrong. “I think it’s hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act,” he said on Tuesday.
 
In fact, the Trump administration has been successful in improving the functioning of the ACA markets with lower costs and improved choices of coverage, despite having no individual mandate penalty.
 
Justice Brett Kavanaugh said, “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place—the provisions regarding pre-existing conditions and the rest.”  It appears at least four of his colleagues may agree.
 
Every Republican in Congress has pledged to protect pre-existing conditions, and the conservative approach, the Health Care Choices 2020 proposal, would do a better job than ObamaCare of lowering health costs, improving coverage for those with pre-ex, and helping lower-income people obtain coverage.  Stay tuned to this space for more on options going forward.
 
Tom Miller, a lawyer and health policy scholar at the American Enterprise Institute, opined on the latest foray over Obamacare before the Supreme Court in several posts this week.  Worth a read for insights, background, humor, and musical links.
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