One week after the upcoming Presidential election, the Supreme Court will rule on Texas vs. Azar, a case that could determine whether or not the Affordable Care Act is unconstitutional.
In general, experts say this particular case against the ACA isn’t as substantive as previous efforts. Dean Rosen, partner at Mehlman Castagnetti Rosen & Thomas, says he doesn’t think the suit is that strong in terms of whether it will strike down the whole law.
“The lower court ruling was very broad. If you talk to most lawyers, they were very surprised the court ruled the way it did,” he says. But he also acknowledges that it’s come this far for a reason. “The reason it has legs is because the legal challenge is based on the steps [Supreme Court Chief Justice] John Roberts outlined in his prior ruling on the law. To make it simple, the crux of the Supreme Court’s decision a couple of years ago was the law is constitutional because of the mandate. If the mandate is gone, the law is unconstitutional. That’s the viewpoint of the people challenging the law.”
Ezekiel Emanuel, MD, Vice Provost for Global Initiatives, Co-Director, Healthcare Transformation Institute, University of Pennsylvania, and an architect of the law, says that every expert he has talked to doesn’t think highly of this case. “You can’t find a respectable conservative legal scholar who actually thinks this case has merit. This includes many legal scholars who were pro other cases against the ACA,” he says.
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However, just because it might not be the strongest argument doesn’t mean it won’t win. “While I do think the arguments are weak, it doesn’t really matter what I think,” says Christen Linke Young, a fellow with the USC-Brookings Schaeffer Initiative for Health Policy. “You have much of the conservative legal movement that embraces this argument. So that does pose a potential threat that will be decided at the court later this year.”
Former Senator Tom Daschle, Founder & CEO of The Daschle Group suggested the Supreme Court, led by Roberts’ proclivity to remain non-partisan, might come up with a solution that doesn’t strike down the entire law and/or remand it back to a lower court. Rosen says there are four potential rulings—two would essentially uphold the status quo, one might strike down just the insurance reforms and a fourth that would strike down the entire law.
The reality is no one, not even the most plugged in legal or policy expert, knows what will happen to the ACA. While the election will give some answers on the future of potential health legislation in a few short weeks, the Supreme Court decision won’t be known until mid-2021.
As Ron Williams, former CEO of Aetna Chairman & CEO, RW2 Enterprises, puts it: “To know what will actually happen? We’re going to have to wait.”
If the law is struck down in its entirety…
Striking down the law, or even the insurance reforms, would cause complete chaos, says Young, who recently wrote an article about this subject. She says the biggest issues for provider CEOs will be figuring out what happens to Medicare payment rates and what they can do in the moment about an invalid Medicare fee schedule. “The big question will effect all the money moving through the health system,” she says. “Also, they will have to know what happens to ACOs and other projects that the innovation center is funding.”
Furthermore, Young says there would be questions on the timeline of tax credits, the authority of state regulators’ contracts, how contracts will have to be rewritten, the unwinding of the Medicaid expansion efforts in 39 states, the fate of Medicaid managed care contracts, and much more. In other words, it would be complete chaos.
