Missouri voted to expand Medicaid. Will Supreme Court toss the law making it possible?
Missourians voted this summer to expand Medicaid, with the goal of providing health coverage for an estimated 200,000 low-income residents.
But the Affordable Care Act (ACA), the Obama-era law that makes expansion possible, faces a constitutional challenge in the Supreme Court next month in a lawsuit supported by 18 states, including Missouri and Kansas.
The ACA, also known as Obamacare, was in legal peril before the death of Supreme Court Justice Ruth Bader Ginsburg, a reliably liberal vote. Her passing last week only increases the chances that the court will strike down the law, possibly nullifying the decision of Missouri voters and throwing the nation’s health care system into chaos by stripping millions of their coverage, experts said.
The case, set for oral argument November 10, will likely be one of the first heard by Ginsburg’s successor if Senate Republicans are able to confirm President Donald Trump’s nominee to the court before the November 3 election.
“The ACA is under threat because of the lawsuit and the threat is greater than it was last week with what looks like the likelihood of President Trump appointing another justice to take Ginsburg’s place,” Timothy Jost, a professor at Washington and Lee University School of Law in Virginia who specializes in health care law.
“I think most at threat are the market reforms, things like protections for pre-existing conditions, but the entire statute is at threat, including Medicaid expansion.”
In August, Missouri became the 38th state to approve Medicaid expansion under the ACA.
Expansion, yet to be implemented in the state, will enable enrollment in Medicaid by low-income adults who currently earn too much to qualify for coverage but too little for subsidies to buy private insurance through the federal exchange. The federal government will pick up 90% of the cost.
Coney Barrett critical of mandate
The ACA, President Barack Obama’s signature domestic policy, has been the target of numerous attempts to repeal led by Trump and Congressional Republicans.
The current lawsuit, which originated in Texas, is joined by 18 states with Republican attorneys general, including Kansas and Missouri, that are challenging the constitutionality of the ACA’s individual mandate — which requires Americans to purchase health insurance.
Twenty-one states with Democratic attorneys general, led by California, became the ACA’s main advocates after the Trump administration chose not to defend the against the suit.
The court upheld the constitutionality of the ACA in 2012, finding that the penalty for people who didn’t comply with the individual mandate was a tax allowable under the Constitution. The elimination of this penalty under Trump’s 2017 tax cuts created a new opportunity for the Republican states to challenge the law.
Amy Coney Barrett, a federal appeals judge from Indiana and one of the front-runners to replace Ginsburg, criticized the court’s previous ruling when she was a law professor at Notre Dame University.
Coney Barrett wrote in a 2017 article that Chief Justice John Roberts, who authored the majority opinion in the 2012 case, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
“He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power,” she wrote.
Jost said the country’s health care system would unravel if the court struck down the entirety of the law because many of its provisions are so well-established at this point.
“It’s like if you would declare the interstate highway system unconstitutional and you had to go rip up all the interstate highways,” he said.
“Millions of people would lose health insurance. Seniors would probably have to pay more for their medicine... There’s all sorts of consequences that would be dire.”
Schmitt and Schmidt support lawsuit
Missouri joined the lawsuit against the ACA in 2018 under then-Attorney General Josh Hawley.
Hawley, now a member of the U.S. Senate, pledged to protect people with pre-existing conditions during his 2018 campaign despite participating in the lawsuit. If the court rules in favor of the GOP states, Congress will have to scramble to pass health care legislation to preserve these protections.
“Congress should act now and adopt the legislation I have introduced and cosponsored to lower insurance costs, get the price of prescription drugs down, and protect people with pre-existing conditions,” Hawley said in an emailed statement when asked about the possibility that the court could strike down the pre-existing conditions protection.
“The Supreme Court may rule any number of ways, but the Senate doesn’t have to wait on that outcome. We can and should act now.”
Speaking to reporters on Capitol Hill Tuesday, Hawley said that he couldn’t predict whether Ginsburg’s successor, if confirmed in time, would be the determining vote. He reasserted that he thinks the individual mandate is unconstitutional, but he said what happens to the rest of the law is an open question.
“I have no prediction of what the court will do in that case. The court has surprised me every time they’ve taken up an ACA case in terms of how they’ve approached the case, how they’ve written about the case,” Hawley said, according to the Senate press pool.
Hawley’s successor as attorney general, fellow Republican Eric Schmitt, declined to comment on whether the GOP states will be more likely to prevail if Ginsburg’s successor is seated.
But Schmitt, who is on the ballot this year, defended his continued participation in the case as the state’s attorney general.
“Simply put, the Affordable Care Act is unconstitutional. Under the Constitution, and even the most expansive view of its Commerce Clause (which gives Congress the power to regulate commerce between the states) the federal government simply cannot require individuals to purchase something that they may or may not want,” Schmitt said.
Schmitt said that Congress should work to fix the law to ensure its constitutionality and preserve its protections for pre-existing conditions. He did not directly address the recent Medicaid expansion vote in Missouri.
“And, while fixing the law is in the hands of Congress, my job is to protect and defend the Constitution of our State and the Land. That is a charge I promise to continue to lead.”
Schmitt’s Democratic opponent, former federal prosecutor Rich Finneran, called for Schmitt to drop out of the case in August after Missouri voters approved Medicaid expansion by a 6.5 percentage point margin.
“He is spending our taxpayer dollars trying to eliminate the very protections that we voted for in August,” said Finneran, a St. Louis attorney.
“If Eric Schmitt prevails in this lawsuit it means we will literally wind back the clock to 2009 and not just roll back Medicaid expansion but all of the health care reforms,” Finneran said, noting some of the law’s most popular provisions, such as allowing people to stay on their parents’ health care plans until the age of 26.
Kansas Gov. Laura Kelly, a Democrat, warned Monday that striking down the ACA would pose a crisis for the state.
“If the Supreme Court decides to strike down the Affordable Care Act, three things will happen during the worst public health crisis we’ve had in a century. More than 1 million Kansans with pre-existing conditions would be in danger of being kicked off their health insurance plans, including the over 53,000 Kansans who have contracted COVID-19,” Kelly said.
“More than 85,000 Kansans enrolled in the Kansas exchange would lose their health insurance and 11 million Americans across this country would also lose coverage.”
The state would also be blocked from expanding Medicaid, something Kelly has been aggressively pursuing since taking office in January of 2019.
Kansas Attorney General Derek Schmidt, a Republican, said striking down the ACA will return the power over health care policy to Kansas and away from the federal government.
“If Kansas prevails in this case, then our state statute protecting Kansans’ freedom to decide for themselves whether to buy health insurance will have survived the federal government’s attempt to preempt it,” Schmidt said in a statement. “The Kansas statute, unlike the ACA, received wide, bipartisan support.”
Regardless of whether Trump’s appointee is confirmed, the court’s liberal wing will have to persuade at least two Republican-appointed justices to join them in order to uphold the law.
Jost said the most likely candidates for this would be Chief Justice John Roberts and Justice Brett Kavanaugh based on their past rulings involving severability. That means the court could rule that the individual mandate is unconstitutional, but sever it from the rest of the law and preserve the bulk of its provisions, Jost said.
If Ginsburg’s successor is not seated in time to participate, the court could deadlock at 4-4. That would affirm the ruling by the 5th Circuit Court of Appeals, which found that the individual mandate was unconstitutional but that the trial court needed to perform additional analysis about which other provisions should survive.
If that happens, there could be several more years of litigation ahead.
The Wichita Eagle’s Jonathan Shorman contributed to this report.
This story was originally published September 23, 2020 at 5:00 AM.
