For more than a decade, Republicans have sought to destroy the signature achievement of the Obama administration – the Affordable Care Act, better known as Obamacare.
Exactly one week after election day, they might succeed.
After an election season like no other, in the middle of a pandemic, the supreme court will hear a case that could result in 20 million Americans losing their insurance, along with a raft of other insurance benefits disappearing from American life. Or not.
All of us have benefited from the act, even if we cannot see it
Abbe Gluck, Yale Law School professor
“This is the one issue now that is causing me tremendous panic,” said Daniel Dawes, author of 150 Years of Obamacare, an attorney and director of the Satcher Health Leadership Institute at Morehouse School of Medicine.
“I have been a cup-runneth-over type of guy, very optimistic in this country, I’m not sure I can even see the cup as half full right now when it comes to the life of the ACA,” Dawes said.
Better known as Obamacare, the ACA expanded government-sponsored health insurance for the poor, required insurance companies to cover a list of benefits such as pregnancy and preventive care, and even required chain restaurants to display calorie counts on their menus. It is intimately intertwined with what Americans think of as health insurance.
“All of us have benefited from the act, even if we cannot see it,” said Abbe Gluck, Yale Law School professor and faculty director of the Solomon Center for Health Law and Policy. Overturning the law would cause “chaos” and “on-the-ground impacts on Americans” that Gluck said “cannot be overstated”.
The ACA was passed on a party-line vote in 2010, and has been loathed by Republicans ever since, viewed by many conservatives as a government intrusion into healthcare. For eight years, Republicans have sought to “repeal and replace” the law.
They failed to repeal the law legislatively after Trump’s election, despite controlling all legislative levers of government. They did, however, take the teeth out of one hated provision, called the “individual mandate”.
The individual mandate clause required all Americans to obtain health insurance or pay a tax penalty. The penalty was repealed in Trump’s 2017 tax law that primarily benefited the rich. Soon after, officials in Texas sued, arguing the entire law was unconstitutional because the individual mandate was such a central tenet.
Texas’s argument has been supported by the Trump administration, which argued because the tax penalty was eliminated, the, “rest of the ACA must also fall”.
Whether the court will overturn the law or eliminate only one provision stands on a question of “severability”, a legal doctrine that allows judges to, in the words of Chief Justice John Roberts, take “a scalpel rather than a bulldozer” to statutes.
“What is highly unorthodox