Supreme Court Pits People v. Politics Again | Commentary

Posted November 18, 2014 at 3:03pm

Political games are de rigueur in Washington and the Supreme Court is no exception. With its grant of review in King v. Burwell, the nation’s highest court has set the stage for yet another Affordable Care Act showdown.

King is different from the hundreds of cases challenging nearly every facet of the ACA. The question at issue cuts to the very heart of the law. Are the ACA’s tax credits and subsidies available to people in every state, regardless of the type of marketplace setup? The answer will have enormous consequences and determine whether millions of Americans can afford to keep their health insurance.

As others have noted, Congress designed the ACA as a three-legged stool made up of the individual mandate, non-discrimination provisions and premium subsidies. In order to make health insurance available to nearly everyone, the ACA prohibits insurers from locking out people with pre-existing conditions or charging excessively high premiums based on age or health. The law compensates for the increased risk of covering people with expensive conditions by requiring nearly everyone to have health insurance. But, in order to enforce that mandate, health insurance must be affordable and accessible. This is where the tax credits and subsidies come into play.

The overwhelmingly majority — 87 percent — of people enrolled in marketplace plans did so with the help of tax credits and subsidies, which reduced premiums an average of 76 percent. Thirty-six states, with about 75 percent of the people nationwide who qualify for premium subsidies, allow the federal government to operate the marketplace.

Opponents argue that these tax credits and subsidies are only available to people in state marketplaces, an argument directly contradicted by the lawmakers who wrote the ACA and 125 state legislators. The tax credits and subsidies provided through the marketplaces are the means by which the ACA accomplishes its goal of improving access to coverage. If a state decides not to create a marketplace, the statute permits the federal marketplace to stand in the shoes of a state one. Should the Court disagree, the result will be devastating. Nearly 5 million people currently eligible for subsidies will not be able to afford coverage and will no longer be required to purchase it. As a result, insurance companies will have to charge prohibitively high rates to everyone else, sending the market into a spiral.

Knock down one leg of the stool and the whole thing comes tumbling down.

Amicus briefs recently filed in the D.C. Circuit Court of Appeals, for its end banc review of Halbig v. Burwell, tell the stories of countless individuals who would be harmed. Many have pre-existing, life-threatening conditions that previously made it impossible for them to purchase insurance and therefore get health care. One man needed a life-saving liver transplant, but was denied coverage by every insurance company he contacted until the ACA banned that discrimination. Others lost loved ones because they couldn’t afford screenings for preventable cancers or treatable conditions such as diabetes, or because they put off essential care to save money.

These were the same stories that prompted Congress to pass the ACA. If the Supreme Court does as the ACA challengers urge — and reads one phrase in one provision of the ACA out of the context of the rest of the statute — it will take us back to dark days when the poor and the sick were out of luck. Health care costs would add up for everyone. Medicare would cost more to treat people who waited to get care later, rather than earlier in their lives. And families would once again live in fear knowing bankruptcy is just one serious accident or life-threatening illness away.

Some argue the ACA should go back to Congress for clarification, but that solution is unnecessary and fanciful given the law’s history on the hill. The anti-ACA lot cannot be expected to properly revisit legislation they have attempted to repeal more than 50 times. Meanwhile, members of the 114th Congress should hope they are not faced with the choice between supporting Obamacare and taking away a lifeline for their constituents.

King v. Burwell is not about a principled analysis of a statute. It’s about party politics — the ongoing, relentless effort to get rid of the ACA by any means available. Party politics should have no position when the health and well-being of millions of Americans stand in the wings.

The law — not ideology — is plainly on the ACA’s side.

Elizabeth G. Taylor is the executive director of the National Health Law Program (NHeLP). Based in NHeLP’s Washington office, Elizabeth leads a nationally recognized legal nonprofit dedicated to protecting and advancing the health rights of low income and underserved individuals.