fb-pixel Skip to main content

WASHINGTON — The Affordable Care Act on Thursday survived a third major challenge as the Supreme Court, on a 7-2 vote, turned aside the latest effort by Republicans to kill the health care law.

The legislation, former President Barack Obama’s defining domestic legacy, has been the subject of relentless Republican hostility. But attempts in Congress to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law has gained popularity and has become woven into the fabric of the health care system.

On Thursday, in what Justice Samuel Alito called, in dissent, “the third installment in our epic Affordable Care Act trilogy,” the Supreme Court again sustained the law. Its future now seems secure and its potency as a political issue for Republicans reduced.

Advertisement



The margin of victory was wider than in the earlier cases, with six members of the court joining Justice Stephen Breyer’s modest and technical majority opinion, one that said only that the 18 Republican-led states and two individuals who brought the case had not suffered the sort of direct injury that gave them standing to sue.

Chief Justice John Roberts, who cast the decisive vote to save the law in 2012, was in the majority. So was Justice Clarence Thomas, who had dissented in the earlier decisions.

“Whatever the act’s dubious history in this court,” Thomas wrote in a concurring opinion, “we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the act — they have not identified any unlawful action that has injured them.”

Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett also joined Breyer’s majority opinion. At Barrett’s confirmation hearings last year, Democrats portrayed her as a grave threat to the health care law.

Advertisement



The court did not touch the larger issues in the case: whether the bulk of the law could stand without a provision that initially required most Americans to obtain insurance or pay a penalty.

“This ruling reaffirms what we have long known to be true: the Affordable Care Act is here to stay,” Obama said on Twitter.

In the 11 years since Obama signed the legislation into law, Republicans have assailed the Affordable Care Act as a step toward socialized medicine, government intrusion into health care decisions and a costly boondoggle.

They challenged it on a variety of fronts in the courts and made calls for its repeal a staple of their campaigns. But some of its provisions, like coverage for preexisting conditions and for adult children up to age 26, proved popular across party lines. Even when they controlled the Senate, the House and the White House, Republicans failed to muster the votes to repeal the law — and despite former President Donald Trump’s promises to deliver a better alternative, he never produced a detailed proposal of his own.

While health care remains a potent political issue — and the Affordable Care Act has shortcomings Democrats have acknowledged — the latest court ruling suggests that Republican chances of winning a legal battle to kill it are now much diminished.

“With millions of people relying on the Affordable Care Act for coverage, it remains, as ever, a BFD,” President Joe Biden said on Twitter after the ruling, alluding to his obscenity-punctuated comment to Obama on the day in March 2010 the bill was signed into law that the legislation was a big deal. Biden has signaled that he now wants to build on the legislation through a series of steps to expand access to health care.

Advertisement



Republicans were critical of the decision but suggested the battle would now focus on the policy fight in Congress.

“The failed Obamacare system will stagger on as a result of this decision,” said Sen. John Barrasso, R-Wyo.

“Every American’s health care has been harmed by Obamacare,” he said. “Republicans remain focused on making health care more affordable for families in Wyoming and around the country. Democrats keep pouring money into Obamacare instead of fixing the many problems facing patients and health care providers.”

The challengers in the case sought to take advantage of the 2012 ruling, in which Roberts upheld a central provision of the law, its individual mandate requiring most Americans to obtain health insurance or pay a penalty, saying it was authorized by Congress’ power to levy taxes.

They argued that the mandate became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because the mandate could no longer be justified as a tax. They went on to say that this meant the rest of the law must also fall.

The challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the 5th U.S. Circuit Court of Appeals, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

Advertisement



Breyer did not address most of the arguments that were the basis of those decisions, focusing instead on whether the plaintiffs were entitled to sue at all.

The two individuals, he wrote, suffered no harm from a toothless provision that in effect merely urged them to obtain health insurance. Similarly, he wrote, the states did not suffer injuries tied directly to the elimination of the penalty that had been part of the individual mandate.

The states argued that the revised mandate would cause more people to take advantage of state-sponsored insurance programs. Breyer rejected that theory.

“The state plaintiffs have failed to show,” he wrote, “that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.”

“Neither logic nor intuition suggests that the presence of the minimum essential coverage requirement would lead an individual to enroll in one of those programs that its absence would lead them to ignore,” Breyer wrote. “A penalty might have led some inertia-bound individuals to enroll. But without a penalty, what incentive could the provision provide?”

In a vigorous dissent, Alito, joined by Justice Neil Gorsuch, said the third installment of the court’s Affordable Care Act trilogy “follows the same pattern as installments one and two.”

Advertisement



“In all three episodes, with the Affordable Care Act facing a serious threat,” he wrote, “the court has pulled off an improbable rescue.”

Alito wrote that the court has routinely found that states have standing to challenge federal initiatives. “Just recently,” he wrote, “New York and certain other states were permitted to challenge the inclusion of a citizenship question in the 2020 census even though any effect on them depended on a speculative chain of events.”

He said there were “novel questions” about whether the individual plaintiffs could sue. But “the states have standing for reasons that are straightforward and meritorious,” he wrote. “The court’s contrary holding is based on a fundamental distortion of our standing jurisprudence.”

Unlike the majority, Alito went on to address the larger issues in the case, California v. Texas, No. 19-840, saying the mandate was now unconstitutional and could not be severed from much of the rest of the law.

Had Alito’s view prevailed, the nation’s health care system would have experienced an earthquake.

Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people — a nearly 70% increase — according to recent estimates from the Urban Institute.

The biggest loss of coverage would have been among low-income adults who became eligible for Medicaid under the law after most states expanded the program to include them. But millions of Americans would also have lost private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

A ruling against the law would also have doomed its protections for Americans with past or current health problems. The protections bar insurers from denying them coverage or charging them more for preexisting conditions.

“Today’s decision means that all Americans continue to have a right to access affordable care, free of discrimination,” said Xavier Becerra, the secretary of health and human services, who in his previous job as California’s attorney general helped defend the law in Thursday’s case.

Biden has said he wants to build on the Affordable Care Act through steps like expanded health insurance subsidies, and some Democrats are pushing for bigger proposals like expanding Medicare coverage to more people.

Republicans suggested on Thursday that their focus would now be less on seeking to repeal the law than on the debate in Congress and on the campaign trail for 2022 over how to address issues like the affordability of health insurance.

“While the Supreme Court ruled today that states do not have standing to challenge the mandate, the ruling does not change the fact that Obamacare failed to meet its promises and is hurting hardworking American families,” the three top Republicans in the House, Reps. Kevin McCarthy of California, Steve Scalise of Louisiana and Elise Stefanik of New York, said in a statement. “Now, Congress must work together to improve American health care.”

This article originally appeared in The New York Times.