Two conservative US Supreme Court justices have suggested that the Affordable Care Act (ACA) could be upheld, as oral arguments began in a suit backed by the administration of US President Donald Trump that threatens the healthcare of millions amid the COVID-19 pandemic.
At risk in the case is the healthcare coverage of at least 20 million Americans and a number of popular protections that have shifted expectations regarding costs and how the US health system operates.
The ACA, passed in 2010 and popularly known as “Obamacare,” allows people to access preventive health services, such as vaccinations, at no cost. It also caps insurer profits.
In a two-hour teleconference on Tuesday, US Supreme Court Justice Brett Kavanaugh and Chief Justice John Roberts indicated in questioning that the law could be upheld even if the court deems one part of it unconstitutional — a crucial question in the case.
To dismantle the 2,000-page law, a majority of the justices must agree on three questions.
The first is about whether the plaintiffs, which include several Republican states and two individuals, have the right to bring the suit.
The second is whether the individual mandate, which once required people to get health insurance or pay a penalty, is constitutional.
If the court answers yes to those questions, it must then decide whether the individual mandate can be severed from the rest of the ACA, or if the entire law should fall.
Both Kavanaugh and Roberts had written recent opinions that said one provision in a law could be found invalid while the rest of the statue was still valid, a concept known as severability.
On Tuesday, Kavanaugh said: “This is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
In two previous challenges to the ACA, the Supreme Court has left it largely intact, but the court now has a 6-3 conservative majority and this is the first major case brought before a court with three justices appointed by Trump.
The case was a flashpoint in hearings for the newest justice, Amy Coney Barrett, who was confirmed to the court two weeks ago.
She has made critical statements about the law, as has Kavanaugh, another Trump appointee.
In 2017, the US Congress kept the individual mandate but eliminated the penalty, sparking the lawsuit now before the court.
Several states, led by California, and an attorney for the US House of Representatives are defending the ACA.
Part of Tuesday’s deliberations concerned why the whole law would be struck down, if Congress did not repeal it when it had the chance to do so.
In a poll last month, while only 55 percent of Americans said they have a favorable view of the ACA, 79 percent said they did not want the court to overturn its protections for people with pre-existing conditions, the Kaiser Family Foundation said.
Without that protection, people who contract COVID-19 could be denied coverage, be charged higher premiums or have future treatment for coronavirus turned down.
On Tuesday, the pandemic was largely absent from the justices’ questions, as much of the discussion focused on the question of standing, or whether the plaintiffs had the right to bring the case — the conservative justices seemed to indicate that they did.
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