Just hours ago the Supreme Court voted to take on the most significant challenge to Obamacare since 2012: King vs. Burwell, which contests the subsidies available to qualified enrollees in the 36 states that have federally facilitated marketplaces or FFMs (get details at Scotus blog). The case is based on an hyper-literal mis-reading (as in blind to the rest of the ACA) reading of Section 1311 of the ACA, which says that subsidies are available to people “enrolled in through an Exchange established by the State under 1311″ (our emphasis). It takes a minimum of 4 votes to hear a case, and since the case and a related Halbig vs. Burwell decision, met with conflicting rulings in lower courts it was fair game for SCOTUS.
Even though this case has *no* impact on California (none. zero. zilch.), it is ridiculous that the Supreme Court has taken this, and risked the financial help and coverage for over 4.7 million Americans. As Judge Davis wrote in concurrence in a lower court decision, “What [ACA opponents] may not do is rely on our help to deny to millions of Americans desperately – needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.”
Without subsidies, health reform in the impacted states could become unraveled. Nationwide 87% of exchange enrollees received subsidies. If the subsidies are no longer available, the federally run exchanges will become a magnet for older and sicker individuals, thus causing those marketplaces to go into a death spiral. Costs go through the roof for everyone left, and the marketplace dies as a result.
Since it took exactly 4 votes to take on a case, this means 4 justices are prepared as they were in 2012 to gut the ACA. This also means that the fate of arguably the most critical provision of the law rests, just as it did in 2012, in Chief Justice John Roberts’ hands.
Back in 2012 Chief Justice Roberts singlehandedly upheld the law—but the provision that he made optional to the states, the Medicaid expansion, is strikingly similar to the subsidy issue. As a condition for “saving” the law, Roberts wanted even more flexibility than was already built into the law. It turns out most of the states that have rejected the Medicaid expansion are also states with FFMs. Some of these states will try to become state-based exchanges like Covered California, but not all.
California has a story to tell…
California has a notably successful state-based exchange, which means that the final ruling even if it turns out badly, will not apply to California. But, if the SCOTUS ruling on King vs. Burwell turns out badly, states will need fresh arguments to set up their own exchanges. Having slashed the number of uninsured in half and also slowed the growth in premium rates also by about half, California can be a model in this regard, though with plenty of lessons for these states.
As Jeffrey Toobin has argued, the Supremes do read the newspapers. On hot button issues like abortion and affirmative action, their opinions will typically reflect the tide of public opinion. Recent polling shows that 64% of the American public does not want to overturn the law, rather they want to improve upon it. But an unfavorable ruling on King vs. Burwell will foreclose this option.
Scientific polling is helpful, but not enough. Now is the time to pull out all the stops and share ACA success stories from the golden state…
Click here to share stories about how the ACA has helped you:
- Financial security: It’s freed up resources in the family budget for worthwhile expenses like college or more nutritious food.
- Cost effective: you’ve stopped getting primary care at the emergency room.
- It’s caught diseases early, while they are still treatable and less expensive to treat.
- It’s helped you manage a chronic condition by giving you access to cost effective, coordinated care in a clinical setting.
- It’s created peace of mind that your insurance will be there at your time of need.
The clock is ticking. The Supreme Court will hear the case early in 2015, and their ruling will come out in June.