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The ultimate fate of the 2010 Affordable Care Act has been catapulted back into uncertainty, with Supreme Court arguments scheduled for Tuesday. While most of the attention has revolved around the potential impact on preexisting condition protections, there is far more at stake. Indeed, invalidation of the ACA will take important benefits away from Americans regardless of whether they have private insurance, Medicare, or Medicaid.

The rationale behind the Supreme Court challenge is best summarized by late Justice Antonin Scalia’s conjecture during oral arguments, in 2012, that “if you take the heart out of the statute, the statute’s gone.”


The case now turns on whether the 2017 zeroing of the tax penalty (originally meant to enforce compliance with the mandate) necessarily negates the entire law. So does the law hinge upon the mandate? The short and the long answer: no. Here are some examples of what Americans stand to lose if the Supreme Court invalidates the entirety of the ACA:

▪ Health coverage for nearly 3 million adult children, who can remain on their parents’ health insurance until age 26.

▪ Subsidies that help low-income individuals afford premiums and cost-sharing — over 9 million enrollees benefit from premium tax credits alone.

▪ Prohibition of annual or lifetime limits on benefits — under the ACA, health insurance companies must cover extremely expensive but life-saving treatments like gene therapy for blindness, CAR-T for cancer, and, soon, gene therapy for sickle cell disease.

▪ Prohibition of recissions (i.e., cancellations) of coverage in all health insurance markets.

▪ Mental health and addiction treatment services, which must be covered by all ACA-compliant plans as part of the 10 essential health benefits established by the ACA.

▪ Zero out-of-pocket cost — no deductibles or copayments — for preventive care, such as vaccinations, routine screenings, and FDA-approved birth control.


Minimum Medical Loss Ratios, which guarantee that insurers spend at least 80 percent of premium dollars on care and quality (85 percent in the large-group market).

▪ Medicare beneficiaries would once again confront the “donut hole” in their prescription drug coverage — a gap that has been gradually closed by the ACA. Reopening this gap would cost many seniors more than $1,000 in higher out-of-pocket spending for their prescription drugs (examining the manufacturer discount provision alone).

▪ Expansion of the Medicaid program in 39 states would be jeopardized, weakening a program that provides coverage to some who have lost their jobs and their employer-based health coverage amid the coronavirus pandemic.

▪ A pathway for the Food and Drug Administration to approve biosimilars — products that are interchangeable with other, more expensive products — that lower drug costs would be eliminated. The FDA has now approved 28 biosimilars and we expect additional biosimilars — including the world’s best-selling drug Humirain the coming years. Overall, biosimilars are priced at 31 percent of brand-named compounds and are estimated to save Americans $54 billion by 2027.

▪ Improvements in hospital care would be lost. A program created to reduce the number of patients who are readmitted to hospitals within 30 days of an initial stay would end. So would a program to reduce hospital-acquired infections, falls, and adverse drug reactions — which can lead to patient deaths.


▪ Requirements that hold nonprofit hospitals accountable to provide benefits to the communities they serve, or else risk losing their tax-exempt status, would disappear.

Other programs and reforms will also be eliminated if the law falls. These elements do not just benefit the 20 million or so Americans who now are covered because of the law, they also benefit the 92 percent of Americans with health insurance.

On the question of whether the individual mandate is practically “severable” from the remainder of the ACA, the last three years provide useful evidence. The individual mandate was functionally eliminated when the tax penalty was set to zero in 2017, yet the exchanges and all of the aforementioned programs still function. Prophecies of the exchanges’ imminent failure, like an annual drumbeat, have proved false. Indeed, open enrollment for 2021 began Nov. 1, and nearly 10 million people are expected to get coverage.

After initial passage of the ACA, it took years to incorporate the provisions into standard medical and insurance practice. The logistics of striking down the entire law on one day in June 2021 would create more chaos, as some states retain protections while others let them expire. Logistical concerns notwithstanding, invalidating the entire ACA would unravel a key safety net that broadly protects Americans no matter where they get their coverage and care.

The initial court ruling that kicked off this current challenge has been called “embarrassingly bad,” and “unmoored” by conservative scholars and litigators. Even Paul Clement, former solicitor general under Republican president George W. Bush and a perennial Supreme Court justice short-lister, criticized the Department of Justice’s norm-breaking approach in this case.


The journey of the ACA through the halls of Congress and courts has been nothing if not dramatic. That this challenge has found its way to the Supreme Court, yet again, should give us pause. It seems unlikely that, given the lack of moral or robust legal basis, this is the twist-ending that spells doom for the ACA. But 10 years since its passage, and with oral arguments only days away, Americans would do well to reflect on what they might lose.

Ezekiel Emanuel is vice provost for Global Initiatives and a professor at the University of Pennsylvania, and author most recently of “Which Country Has the World’s Best Health Care? Andrea M. Cooke is a policy analyst at the Blue Cross and Blue Shield Association and is a student in the Master of Health Care Innovation Program at the University of Pennsylvania. Connor Boyle is a researcher in the Department of Medical Ethics and Health Policy at the University of Pennsylvania.