Editor’s Note: On June 17, seven months after hearing the case, the Supreme Court ruled to uphold the Affordable Care Act. Justices Stephen Breyer, John Roberts, Clarence Thomas, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett ruled that the Attorneys General suing over the ACA had no standing. Justices Neil Gorusch and Samuel Alito dissented.
Since President Joseph R. Biden Jr. was inaugurated, the ACA has gotten new life. The new administration expanded the open enrollment period from February 15, 2021 – May 15, 2021. During that period, an additional 1 million people signed up for insurance through the health insurance marketplaces, on top of the 12 million that had signed up previously. Biden’s HHS have also begun to pour money back into marketing efforts in efforts to increase enrollment, which had been cut back during the Trump years.
Back when the decision was still up in the air, we spoke to CEOs at health insurance plans who were confident the law would be upheld. With the law being upheld, we’ve updated our write up from November.
On Tuesday, November 10, the Supreme Court heard the California v. Texas case that will determine the fate of the Affordable Care Act and the millions who rely on it for health insurance. The early reaction was widespread: multiple Justices appeared to be signaling that they would not overturn the ACA. Seven months later, the ACA was upheld by the Supreme Court, proving these insurers correct in their prognostications.
“Like the previous challenges to the Affordable Care Act decided by the Supreme Court, this case will generate a lot of interest and concern. But we do not believe that the Supreme Court is likely to change the core individual market reforms under the Affordable Care Act,” Oscar Health CEO Mario Schlosser told Health Evolution back in November.
What the Justices said
Justices Breyer, Kagan, Sotomayor, Kavanaugh, as well as Chief Justice Roberts asked questions that many media outlets interpreted as suggesting that they will leave the ACA in place. All five, plus Justices Thomas and Coney Barrett ruled in favor of the ACA.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the law in place,” Kavanaugh said during the hearing. Roberts added to Texas Solicitor General Kyle Hawkins (who argued the ACA was unconstitutional): “I think it’s hard for you to argue that Congress intended the entire act [to] fall if the mandate were struck down, when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”
In the writing the majority opinion, Justice Breyer said, “the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional.” Thomas in a concurring opinion said that the plaintiffs didn’t do enough to establish standing, nor did they argue standing through-inseverability. In a long dissent, Justice Alito opined that 18 states “who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge.”
A few hours after the Court argued on the law in November, then President-elect Biden said that the attempts to make the law unconstitutional were “simply cruel and needlessly divisive” and called the consequences a matter of life and death for many Americans. Then Vice President-elect Kamala Harris added that getting rid of the Affordable Care Act will be a backward step and strip people of pre-existing conditions.
How two health plan CEOs are expanding
Uncertainty about the ACA’s fate never stopped ACA insurers from moving forward on plans for 2021.
In June of 2020, Oscar Health, a tech-driven insurance company, announced that it will be expanding individual and family plans to 18 states and 47 markets in 2021. The company also announced a collaboration with health system MercyOne to offer individual and family plans through the ACA marketplace in the state of Iowa.
“We are often asked to respond to attempts to weaken or repeal the individual market, and we have always said that we don’t expect there to be an impact on our business. Thus far, we have been proven right. The individual market remains healthy, despite challenges to it over the years,” Schlosser said.
Schlosser added that because Oscar Health built everything in-house, the New York-based company can take advantage of new opportunities and respond to changes very quickly. He said this was demonstrated by how quickly Oscar stood up its COVID-19 risk assessment and testing site locator in March.
Schlosser is not alone in projecting confidence over the fate of the Supreme Court case. In a November webcast hosted by University of Pennsylvania Leonard Davis Institute of Health Economics, Allison Hoffman, Professor of Law, University of Pennsylvania Carey Law School, said that the case was weak because states would have to prove there was actual harm done to them through the ACA by imposing the individual mandate. The problem is the penalty for the mandate is zeroed out.
“The Supreme Court could look at this and say, ‘No one has been harmed by a law that has no penalty and this case has no grounds to stand on.’ They could toss it out on those procedural grounds,” said Hoffman. Another panelist, Mark Pauly, Bendheim Professor, Department of Health Care Management, and Professor of Business Economics and Public Policy, The Wharton School, said “the smart money is [the Supreme Court] won’t throw out the ACA.”
Another major insurer, Centene, was predicting on the ACA being uphold. Centene CEO Michael Neidorff said back during a November earnings call that he was confident the law would be upheld.
“I don’t believe that when push comes to shove they really want to put all these people during the height of a pandemic on the street with no insurance,” Neidorff said. Centene has plans to expand marketplace health insurance plans in 400 new counties across 13 states in 2021.
Their confidence was mirrored by several other legal experts. Dean Rosen, partner at Mehlman Castagnetti Rosen & Thomas, said he didn’t think the suit is strong enough to strike down the whole law.
Read more: The ACA faces an uncertain future: How can CEOs plan ahead?
For Schlosser and Oscar Health, regardless of the consequences of this case, the company will continue to focus on ensuring its members have access to affordable health care coverage. His advice echoes a collaborative tone that has become more commonplace as the health industry has fought the COVID-19 pandemic.
“My comment to other health care leaders is more than advice – it’s a call for collaboration,” Schlosser said. The health care system as it exists today has a longstanding history of complex regulations and processes that won’t change overnight. We need to work together to unearth every opportunity, down to the hyperlocal level, and implement new strategies that prove the value of enabling innovation that reduces costs and improves outcomes.”
“CareFirst is pleased that the key provisions of the Affordable Care Act remain in effect and will continue to promote access to affordable health insurance for the individuals we serve and all Americans,” said Brian D. Pieninck, President and CEO of CareFirst BlueCross BlueShield. “CareFirst looks forward to continuing our work with Federal and state policymakers to maintain and improve access to healthcare throughout our region.”
