Health Law Daily Justice Ginsburg leaves rich legacy of legal thought on the ACA
Monday, September 28, 2020

Justice Ginsburg leaves rich legacy of legal thought on the ACA

By Cathleen Calhoun, J.D.

How will the U.S. Supreme Court decide an Affordable Care Act case before the court this November without Justice Ginsburg who gave in-depth contributions from the start?

On November 10, 2020, another Affordable Care Act (ACA) (P.L. 111-148) case will be heard before the U.S. Supreme Court, and, for the first time, an ACA case will be heard without Justice Ruth Bader Ginsburg. The case of California v. Texas will go forward without her, although her words from past cases on the topic may be reflected on by some as the court determines the future of the ACA. Notable cases are outlined below with quotes from Justice Ginsburg. Choosing a handful of quotes from what could be described as an intricately woven tapestry of sharp, intellectual thought could not fully demonstrate Justice Ginsburg’s dedication to legal analysis and her notorious talent and hard work. Links to decisions and oral arguments are provided for desired further reading.

First ACA case. The Constitutional questions on the ACA first appeared before the U.S. Supreme Court in 2012, with the case of National Federation of Independent Business v. Sebelius. In an opinion written by Chief Justice John Roberts, the court upheld (5-4) the individual mandate to buy health insurance as a constitutional exercise of Congress’s taxing power.

Justice Ginsburg filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part:

"I agree… that the minimum coverage provision is a proper exercise of Congress’ taxing power… Unlike the Chief Justice, however, I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the Spending Clause permits the Medicaid expansion exactly as Congress enacted it…"

She also added, "…The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s…In the Social Security Act, Congress installed a federal system to provide monthly benefits…Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to the Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive…the minimum coverage provision, along with other provisions of the ACA, addresses the very sort of interstate problem that made the commerce power essential in our federal system…"

2015. On June 25, 2015, another ACA case was decided by the high court, King v. Burwell. The U.S. Supreme Court affirmed (6-3) the Fourth Circuit and upheld an Internal Revenue Service (IRS) ruling to extend health plan premium tax credits to individuals enrolled in ACA coverage through a federal Health Insurance Exchange (Exchange). Chief Justice John Roberts, writing for the majority, and joined by Justice Ginsburg and others, found that the ACA phrase "an Exchange established by the state" did not expressly limit tax credits to state Exchanges, but was properly viewed as ambiguous and that several other provisions in the ACA would make little sense if tax credits were not available to federal Exchange enrollees.

Although she did not write the majority opinion or a concurring opinion, during oral argument, Justice Ginsburg contributed when she stated her concern that if the nationwide subsidies were struck down, there would be disastrous consequences for states that don’t create their own.

2020. In one of her last analyses, Justice Ginsburg filed a dissent in the case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, decided on July 8, 2020. The high court held (7-2) that government departments had the authority to provide exemptions from the regulatory contraceptive coverage requirements stemming from the ACA for employers with religious and conscientious objections. Justice Ginsburg said, "The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it."

Against this backdrop, oral arguments will be heard before the U.S. Supreme Court in another ACA case, California v. Texas, on November 10, 2020. The Fifth Circuit decision upheld the federal district court’s ruling that the individual mandate in the ACA was unconstitutional. The ACA individual mandate provision gives individuals a healthcare choice—either purchasing health insurance or paying to the IRS what is called in the law a "shared responsibility payment," but Congress reduced the "shared responsibility payment" to zero without repealing the ACA. The high court could find part or parts of the ACA unconstitutional, the entire law unconstitutional, or find that the Fifth Circuit was wrong and that the individual mandate is constitutional.

The loss of Justice Ginsburg will be keenly felt by defenders of the ACA. Her legacy of thoughtful analysis of the controversial law will be remembered.

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