On Tuesday, the Supreme Court heard a case against the Affordable Care Act (ACA) which could result in the legislation being deemed unconstitutional. The court continues to deliberate before reaching a ruling in the coming days.
The Affordable Care Act was passed in 2010 with the goal to lower the cost of health insurance to cover more Americans and expand the Medicaid program to include more individuals with low incomes. Under the ACA, more than 20 million Americans who were previously uninsured have gained coverage. The act also includes a provision that prevents insurance companies from discriminating against an individual with pre-existing health conditions in the form of refusing coverage or increasing premiums. Preventative treatments, such as annual visits, are free of charge with the passage of the ACA.
However, with the benefits of the ACA, came an increase in taxes as well as a provision that required people that didn’t have insurance to pay a fine. This provision was included for the purpose of encouraging all individuals to pursue health coverage, and help improve the stability of the healthcare system.
This instance was the third time a case against the ACA has been heard by the court. Previously, in 2012 and 2015, the court chose to uphold the provisions of the legislation.
First, they deemed that the mandate of requiring individuals without coverage to pay a penalty was within the taxing power of Congress. This ruling passed with a 5-4 vote, with each of the four liberals on the court as well as Chief Justice John Roberts ruling in favor of the ACA.
In 2015, the court ruled to allow the government to provide tax subsidies to people with lower incomes to help cover the cost of health insurance. This precedent was set in a 6-3 vote, with the previous five supporters of the ACA and the addition of Associate Justice Anthony Kennedy.
In each of these cases, former Supreme Court Associate Justice Ruth Bader Ginsburg, made up part of the majority. Following her death and subsequent replacement by Amy Coney Barrett, the court now leans conservatively, raising questions about the future of the ACA as well as a potential shift in the future prospects of healthcare in America.
The current case being tried, California v. Texas, is a result of a change made in 2017, which reduced the tax on individuals not having health insurance to zero. Members of the Republican party are arguing that the penalty mandate is too integral to the remainder of the ACA and that following its removal, the other provisions included within the act can not be judged separately and therefore must be outlawed.
Of the six justices that, in previous cases, chose to uphold the ACA, only four remain. Even if Chief Justice John Roberts continues to rule in favor of the legislation, the remaining five conservative justices, three of whom were appointed by President Trump, have the power to overturn the ACA which would lead to far-reaching consequences for the future of healthcare in the United States. More than 20 million Americans are now at risk of losing health insurance should the ACA be overturned, and another 133 million are at risk of paying higher premiums due to preexisting health conditions.
The Death of Justice Ruth Bader Ginsburg
This past month has seen a lot of changes in all aspects of society as the United States Presidential Election unfolded and while a number of these adjustments will have implications for the field of healthcare, one of the biggest catalysts for the current change in outlook came with the death of former Supreme Court Justice Ruth Bader Ginsburg.
The death of Ginsburg has given rise to the possibility of these potentially transformative results but also represents the loss of a female advocate for women’s rights. Even prior to her appointment to the Supreme Court, Ginsburg took action against gender discrimination. While attending Harvard Law School, as one of only nine women in her class, she was asked to defend her right to the position, explaining “what [she was] doing, taking a seat that could be occupied by a man.” Even after graduating first in her class, she had trouble finding a job, and when she finally did, she had to file lawsuits to be paid the same salary as her male counterparts. This pattern of discrimination and her consequential fight for equality followed her throughout her career.
Well-known for working towards ending discrimination on the basis of sex, throughout her time in the Supreme Court, Ginsburg helped with a number of decisions that fundamentally changed the future of healthcare in America, specifically in areas relating to abortion and the reproductive rights of women.
Even as early as 1993, during her Senate confirmation hearings, Ginsburg made her opinions on the topic of abortion known. She explained that, “the decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity … When [the] government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
In addition to her work within reproductive rights, Ginsburg played a key role in upholding the rights of individuals suffering from mental disabilities. In the 1999 case, Olmstead v. L.C., two women suffering from mental disabilities were approved to move from the Georgia Regional Hospital facility to a community-based program. It was determined that they would be better suited for treatment within community living rather than living in “unjustified isolation”, but they were denied the ability to transfer.
Ginsburg delivered the majority opinion, stating that “[states] are required to place persons with mental disabilities in community settings rather than in institutions when the State’s treatment professionals have determined that community placement is appropriate.” This led to the precedence of including mental disabilities within the Americans with Disabilities Act and prevented further discrimination against individuals suffering from mental illnesses.
In 2007, despite Ginsburg’s support for the reproductive rights of women, the Supreme Court as a whole upheld the Partial-Birth Abortion Act of 2003 in Gonzales v. Cahart. The ruling stated that the specific surgical procedure in question was never necessary in protecting a woman’s health and no barrier for a woman to obtain an abortion. The majority opinion delivered by Justice Kennedy included a now infamous opinion, that women needed to be “protected” from the potential regret that may come after the abortion.
Ginsburg provided her dissenting opinion, stating that “The solution the court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. … Instead, the court deprives women of the right to make an autonomous choice, even at the expense of their safety.” She also included her concerns with the law, stating that “the absence of a health exception burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk.” Ultimately, she critiqued the role of lawmakers passing legislation that didn’t allow for the medical opinions of doctors.
Although Gonzales v. Cahart was a setback in Ginsburg’s fight for women’s reproductive rights, her opinions were once again reflected in her ruling in Whole Woman’s Health v. Hellerstedt. In 2016, a Texas law was deemed unconstitutional by the Supreme Court on the basis that it created an excessive burden on the part of women seeking an abortion. In her concurring opinion, Ginsburg stated that “[the law] inevitably will reduce the number of clinics and doctors allowed to provide abortion services… It is beyond rational belief that [the law] could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions. Laws like [this one] that do little or nothing for health, but rather strew impediments to abortion, … cannot survive judicial inspection.”
Throughout her life, Ginsburg was an advocate for women and made a significant impact within the healthcare system. The loss of her voice in the Supreme Court will fundamentally alter the future of the healthcare system, a change we may begin to see as early as when an official ruling is made on the status of the Affordable Care Act.