The first time Republicans asked the U.S. Supreme Court to take a sledgehammer to the Affordable Care Act, they failed. The second time didn’t turn out well for the health care law’s GOP opponents, and the ACA survived the third effort, too.
Will the fourth time be the charm? It’s possible, though an Associated Press report suggested that the odds appear to be on health care advocates’ side.
The Supreme Court seemed likely to uphold a key preventive-care provision of the Affordable Care Act in a case heard Monday. Conservative justices Brett Kavanaugh and Amy Coney Barrett, along with the court’s three liberals, appeared skeptical of arguments that Obamacare’s process for deciding which services must be fully covered by private insurance is unconstitutional.
For those who might benefit from a refresher about this case, let’s revisit our earlier coverage and review how we arrived at this point.
The ACA was written to include a great many benefits for consumers, including requirements that Americans receive no-cost preventive care, covering everything from cancer screenings to vaccinations, prenatal services to HIV prevention, pap smears to heart disease screenings. A federal panel — the Preventive Services Task Force — was tasked with determining which health care measures would be included.
When the panel approved no-cost coverage for the HIV prevention medication known as PrEP, however, a group of conservatives filed suit, arguing that the panel violated their religious rights by “making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
Just as notably, the plaintiffs said that the task force’s policies are invalid because its members are appointed by the executive branch and not confirmed by the Senate.
A couple of years ago, Judge Reed O’Connor of the Northern District of Texas — a judge who has earned a reputation as one of the judiciary’s most far-right reactionaries — ruled with conservatives and blocked enforcement of the ACA’s preventative health care requirements. Last year, the 5th U.S. Circuit Court of Appeals, generally seen as the nation’s most conservative appellate bench, predictably agreed with O’Connor and rejected the ACA’s health task force.
Now it’s the Supreme Court’s turn, and during oral arguments, much of the discussion focused on the Constitution’s appointment clause, which requires Senate confirmation for a variety of powerful offices, though as The Washington Post noted, it also allows Congress to vest authority in department heads and other officials to appoint “inferior officers.”
It’s a point the ACA’s opponents struggled to explain away.
To be sure, the first three ACA cases to reach the high court created existential threats to the law known as Obamacare: The plaintiffs were trying to tear down the entire system, root and branch. That’s not the case in this dispute: Even if the ACA were to lose, it would still exist. That said, as a recent New York Times’ report explained, the impact of a potential defeat would be dramatic for millions of Americans. It would mean, among other things, the elimination of “screenings to detect cancer and diabetes; statin medications to reduce the risk of heart disease and strokes; physical therapy for older adults to prevent falls; and eye ointment for newborns to prevent infections causing blindness.” Lung cancer screenings alone save thousands of American lives every year, and if ACA opponents win this Supreme Court case, the screenings would no longer be free. For now, however, there’s cautious optimism that the justices will do what they’ve done before and side with the Affordable Care Act. A ruling is expected over the summer. Watch this space. This post updates our related earlier coverage.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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