SCOTUS must uphold the Affordable Care Act

Originally published in The Hill
By Jody Rabhan
November 9, 2020

With more than 9 million COVID cases in the United States, the infection continues to surge. Yet the Supreme Court hears a consolidated case on Nov. 10, California v. Texas, that could lead to the end of the Affordable Care Act (ACA). This would be a disastrous outcome for those with newly pre-existing conditions due to COVID in addition to the 137 million with pre-existing conditions — including my son.

Before the ACA, insurance companies could deny coverage, charge higher premiums, and limit people’s benefits with pre-existing conditions. The ACA had a transformative impact on health care by increasing the scope of benefits and improving access to coverage for millions of Americans. And, young people now have the option of staying on their parent’s plan until age 26.

Preserving this landmark law is not just part of my professional work. It is also personal. Two years ago, as this case began with a federal judge in Texas, my 16-year-old son was diagnosed with type one diabetes (T1D). T1D is a chronic autoimmune condition that makes the body unable to produce insulin, which is the hormone that regulates blood sugar. He must take insulin 24/7 to stay alive. As the case wound its way through the federal courts, so too did we embark on our odyssey of insulin injections, carb counting, blood sugar monitoring, and more. Like other chronic diseases, this disease is expensive — according to the National Institutes of Health, lifetime individual medical costs for type one diabetics is over $100,000, and the disease burdens the health care system into the millions. The ACA changed the game, ensuring affordable health care coverage to people like my son. This is serious peace of mind for him and our family and the millions of others who have and will benefit from the ACA.

While the ACA is not perfect, there is no other option for the millions of people who stand to lose care. Republican lawmakers have tried to repeal the law, but with no viable alternative. Unable to gut the law legislatively, the president vowed to appoint federal judges who would dismantle the ACA, “If I win the presidency, my judicial appointments will do the right thing, unlike Bush’s appointee John Roberts on ObamaCare.” But, what is the plan for the more than 20 million Americans who stand to lose their health insurance?

Indeed, that is now a genuine question with Amy Coney Barrett on the U.S. Supreme Court. Her appointment to the Court dramatically increases the chances that the law gets overturned. Barrett criticized Chief Justice Roberts for his opinion in NFIB v. Sebelius, which upheld the ACA, saying he “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” She further suggested that Justice Scalia’s view in dissent, “that the entire ACA should have been thrown out,” was the correct approach according to the “statutory textualism to which most originalists subscribe.” Barrett also expressed disagreement with the Supreme Court’s majority opinion in King v. Burwell, the second case in which the Court upheld the ACA, saying the dissent had “the better of the legal argument.”

With Trump’s now three appointees on the Court, the California v. Texas case brought by the Trump administration seeks to invalidate the ACA in its entirety. It seems pre-ordained that despite no alternative Republican plan and a clear, if not illegitimate, Court-packing effort, the ACA will be gutted. Individuals, families, and the entirety of our health care system must brace for the worst: destroying the entire law would lead to chaos for the tens of millions of Americans who will directly lose coverage and those who will lose vital protections and critical health benefits.

However, there is hope. With a new administration and dozens of new and re-elected health care lawmakers, we have opportunities. These health care champions understand the importance of health care — particularly in the middle of a pandemic and skyrocketing health care costs. And, if by some miracle, the Court’s decision allows the ACA to stand, we may have the chance to both change the conversation and improve on the law.

The moral test of a nation is how it treats its most vulnerable. Without prioritizing the health and welfare of the people, we cannot have a healthy nation. Universal access to comprehensive care, including reproductive health care services and mental health care and laws, policies, programs, and services that promote wellness and illness prevention, is critical. Voters know this — which is why health care was a driving issue to the polls in 2018 and our most recent election. I hope the Court knows this.

Jody Rabhan is the Chief Policy Officer at the National Council of Jewish Women, a 127-year-old progressive social justice organization with 180,000 advocates. She oversees federal policy and strategy related to the federal courts; health care; reproductive health, rights, and justice; and more for the organization.

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