Recent decisions by federal courts have blocked or limited key provisions of the Affordable Care Act. These verdicts have succeeded where efforts of the U.S. House of Representatives to derail the law have failed.
The U.S. Supreme Court set the stage for reshaping the ACA with decisions released in June 2012. A majority of the justices upheld the constitutionality of the individual mandate requiring most people to maintain a minimal level of health insurance beginning in 2014. By a 7-2 vote, the court rejected a suit that the entire ACA should be invalidated.
The most profound verdict by the court invalidated the ACA provision to expand Medicaid coverage. This section of the law required each state to expand its Medicaid program to cover persons earning up to 138 percent of the Federal Poverty Level (FPL). The federal government would pay the full cost of expansion for three years and then cover 90 per cent of the costs thereafter.
By a 5-4 vote, the Court ruled that Medicaid expansion was unconstitutional in that it coerced states to behave in a manner opposed by legislatures. This decision reduced from 17 million to 11 million the number of previously uninsured persons who would have been insured under the original ACA. Twenty-six states, including Kentucky and Arkansas, and the District of Columbia elected to expand their Medicaid programs. Each received federal support for the expansion.
On June 29, the Supreme Court issued another 5-4 decision (Burwell vs. Hobby Lobby) that addressed ACA provisions that contraceptives should be included in health services available for women at no additional cost. The majority ruled that this requirement violated federal laws that protected the religious liberty of companies that were privately held by religious families. Under the ruling, birth control pills, intrauterine devices and morning-after pills did not have to be included as covered benefits for female employees of these two companies.
It is uncertain if this decision could be more broadly applied to privately held companies whose owners oppose blood transfusion or other medical therapies on religious grounds. In her dissent, Justice Ruth Ginsberg commented that this ruling extended religious liberty to for-profit companies.
Confusion abounded on July 22 when three judge panels of two federal Courts of Appeal reached contradictory opinions on the ACA's provision that the federal government would subsidize health insurance premiums for millions of Americans whose income fell below set levels of the FPL. The ACA provides for a sliding scale of support for persons earning up to 400 percent of the FPL to purchase health insurance from the federal insurance exchange or the exchanges operated by some states.
By a 2-1 vote, the Washington D.C. Circuit Court of Appeals struck down the provision for giving premium subsidies from states that rely on the federal insurance exchange. Should this ruling stand, an estimated 4.5 million Americans living in the 36 states that utilize the federal exchange would be affected. Two Republican appointees overruled one Democratic appointee.
But later in the day, the Fourth Circuit Court of Appeals in Richmond, Va., by a 3-0 vote, upheld subsidies as a "permissible exercise" of the exchange. Two of the judges were appointed by a Democratic president, one by a Republican president.
It is uncertain how this debacle will be addressed. The suits might be reviewed by the entire panel of judges in each circuit. Alternatively, the Supreme Court might take up the conflicting opinions.
These various suits represent concerted efforts to undo the ACA. At the Supreme Court level, Justices Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy have opposed various provisions to expand coverage under the ACA. Chief Justice John Roberts usually votes with this bloc.
Given the current makeup of the Supreme Court, what manner of health care reform would pass constitutional muster? Would a single-payer system, such as an expansion of Medicare, be approved? This structure places the federal government in the role of insurer with uniform regulations for covered services and pricing.
Or would the court approve matching federal funds for individual states to devise their own health care benefits? Massachusetts currently operates a successful program upon which many provisions of the ACA are based. Vermont is building a single-payer system. Could other states either replicate these plans or produce new mechanisms for providing universal access to health care?
What is on the mind of the Supreme Court justices as they ponder health care reform? Tens of millions of uninsured Americans would like to know.
Contact Clif Cleaveland at email@example.com.