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The Supreme Court will hear yet another lawsuit against the Affordable Care Act (ACA) starting today that could have major implications for patients with chronic conditions. The case is known as California v. Texas.
While the outcome of this case is important for all Americans, it’s particularly important if you have pre-existing conditions. Here’s what the Global Healthy Living Foundation and CreakyJoints patient community should know about the case and how its outcome could affect access to health care.
A core component of the ACA is that it protects patients with pre-existing conditions from being discriminated against in the purchase of health care. Under the law, insurers can charge more for smokers, but not for those with pre-existing conditions. If the law is held unconstitutional this protection would disappear and anyone with a pre-existing condition — such as a chronic disease like rheumatoid arthritis — would be at risk of losing their health coverage or having the cost of their premiums dramatically raised.
Before the ACA, insurers could turn a person down for an individual policy or charge them more, based on their medical history. The nonpartisan Kaiser Family Foundation estimates that about 54 million working-age adults have health issues that would have made them “uninsurable” before former President Barack Obama’s signature law. Tens of millions more have issues that could have led to higher premiums. Female gender was one, as insurers routinely charged women more.
And it’s likely that COVID-19 could become America’s newest pre-existing condition for the more than 10 million people who have tested positive so far. Under the ACA, a coronavirus case cannot be used to deny someone coverage or charge them more. If the ACA is gone, that becomes a real question.
The Justice Department — under President Trump — is no longer defending the law in the Court. The defense of the law is being led by California, along with 20 other states. The House of Representatives has also entered the lawsuit in defense of the ACA.
The key legal argument for invalidating the law is the mandate requirement of the ACA. In 2010, Congress included a “mandate” to purchase health insurance, along with a penalty for those who failed to comply.
In 2017, Congress reduced the penalty to zero dollars, effectively getting rid of the mandate.
In an earlier ruling, the 5th Circuit majority agreed with Plaintiffs (led by Texas) that the elimination of the penalty made the individual mandate unconstitutional because it can no longer be justified as a tax.
The question is: If the individual mandate is deemed unconstitutional in the current case before the Supreme Court, does that make the entire ACA unconstitutional? It is possible that the Court will rule that the mandate is unconstitutional, but “sever” the remainder of the law, thus keeping the bulk of the ACA.
This would be reassuring news for people with pre-existing conditions as it would somewhat keep the status quo. The ACA law would survive without the mandate.
This is the most significant case that newly minted Supreme Court Justice Amy Coney Barrett will hear in her short tenure on the court. In her confirmation hearings last month, Barrett said there is a “presumption of severability” — giving hope to health care advocates that much of the law might remain even if the issue of the mandate is found unconstitutional.
So save your nail biting (if you even have nails left to bite at this point). And the House and Senate could always pass new legislation to address any changes in the ACA that would negatively affect people with pre-existing conditions. We’ll see about that.