Listen: Is COVID-19 a Preexisting Condition?

Hamblin: And the initial challenge to the ACA in the Supreme Court was over the mandate being unconstitutional?

Katherine Wells: Yeah, I thought we already went through this. Didn’t the Supreme Court already say the law is fine?

Pollitz: It did, but the argument is that the Supreme Court ruled that because there were penalties tied to the mandate, that the mandate was really a tax provision. And Congress clearly has authority under the Constitution to levy taxes, so that was okay.

Now the plaintiffs are saying that the tax penalty is gone, so it isn’t a tax anymore. They say there’s a mandate—albeit with no penalty—but that’s still unconstitutional, and so the whole law has to come down. A lot of legal scholars look at this—even conservative legal scholars—and say that’s kind of ridiculous on its face. But that is the case that is before the Supreme Court now.

Wells: Is the likely outcome that the Supreme Court just says, “Okay, sure, we can’t have a mandate, but the law isn’t unconstitutional”?

Pollitz: I certainly won’t say what a likely outcome is—2020’s been quite a year. And now, with the Supreme Court makeup changing, nobody knows what the outcome is. At the one end, the Court could agree and invalidate the whole thing. At the other end, they could say this is stupid on its face, and dismiss the case. In between, they could say the mandate now is unconstitutional, but there’s this severability argument. Maybe the whole law doesn’t have to go, but what would have to go with it?

Earlier briefs by the Trump administration in memos to Congress suggested that those market reforms would have to go, because the mandate was gone. So the individual market could go back to turning me down because I’m a cancer survivor. Group health plans at work could go back to excluding your preexisting conditions. Group plans did that before the ACA. So that severability argument lies in between the two extreme outcomes and, honestly, nobody knows with a new Court how this might work.

I think there are arguments about the constitutionality of laws that the Congress enacts, what these laws can and can’t require, and how they have to be crafted … All of that is wrapped up in this case right now, but for people, it just feels kind of scary. I mean, 20 million people could lose their coverage if this law gets erased. And a whole lot of us—over 50 million of us adults—could be again labeled uninsurable.

Wells: There’s such a focus on the ACA this week with the Senate confirmation hearings, because if the new justice is confirmed before oral arguments in November, she gets to be part of the decision?

Pollitz: Right. This is the third trip to the Supreme Court for the Affordable Care Act, and it’s been upheld twice before by a vote of 5–4. Now the expectation is that 5–4 is going to be harder to achieve this time.

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