Ginsburg’s death casts fresh uncertainty on the Affordable Care Act's future

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The death of Justice Ruth Bader Ginsburg has cast fresh uncertainty on the fate of the Affordable Care Act as the Supreme Court prepares to hear arguments in a case challenging the constitutionality of the landmark health care law.

Ginsburg, who died Friday at the age of 87, voted to uphold the Obama-era law in 2012 alongside the three other liberal justices and Chief Justice John Roberts. She was widely expected to do so again when the high court reviews the ACA for the third time, with oral arguments scheduled to begin the week after the November presidential election.

But now the latest case — California v. Texas, which is based on an earlier lawsuit brought by 21 Republican state attorneys general and endorsed by the Trump administration — will be heard without Ginsburg, a stalwart of the court’s liberal bloc. Another coalition of Democratic attorneys general is trying to uphold the law.

The states are arguing the ACA was invalidated when Republicans in 2017 eliminated the financial penalty for Americans who don’t buy health insurance with the passage of the Tax Cuts and Jobs Act. The court initially upheld the law because of the individual mandate, which required Americans to purchase health insurance or pay a fine, under Congress’ vast taxing authority. The suit contends that if that part of the ACA is invalid, so is the rest of the law.

Democrats are now sounding the alarm about the future of the law without Ginsburg on the court, especially if President Trump can quickly install a new conservative justice.

"The president is rushing to make some kind of a decision because ... Nov. 10 is when the arguments begin on the Affordable Care Act," House Speaker Nancy Pelosi said during an interview on ABC’s “This Week” on Sunday. "He doesn't want to crush the virus. He wants to crush the Affordable Care Act."

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But on Monday, legal scholars laid out a complicated, murky legal process with no clear answer as to what will happen to the ACA when the conservative-dominated court considers the law this November.

The ultimate outcome of the lawsuit will affect millions of Americans, and the repeal of the decade-old law could leave up to 32 million people without health insurance by 2026, according to a Congressional Budget Office report from 2017 about the effects of repealing the ACA.

“It’s kind of a chess game, in that you have to think a number of moves ahead,” Seth Chandler, a University of Houston Law Center Law Foundation professor, told Fox News. “The first question is will there be a new justice on the Supreme Court by the time the case is decided? Which isn’t necessarily by the time the case is argued on Nov. 10.”

Here’s a closer look at how the case could play out:

Two conservative justices join forces to save the health care law 

The Supreme Court may ultimately agree with the Republican states that the individual mandate is unconstitutional.

But justices have to address the complex legal concept of “severability:” If one part of the law is invalidated by the court, does the rest of it still stand?

In this Oct. 21, 2019, file photo U.S. Supreme Court Justice Ruth Bader Ginsburg listens to speakers during the inaugural Herma Hill Kay Memorial Lecture at the University of California at Berkeley in Berkeley, Calif. (AP Photo/Jeff Chiu, File)

Texas is arguing the individual mandate is unconstitutional and therefore so is the entire law. Last year, the 5th U.S. Circuit Court of Appeals ruled the insurance requirement is unconstitutional but charged a federal district court in Texas with reassessing how much of the legislation stood without the individual mandate in place.

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Legal experts argued that it was likely the court may strike down the individual mandate as unconstitutional but preserve the status quo of the law, leaving in place protections for individuals with preexisting conditions, health insurance subsidies and a Medicaid expansion.

“I am skeptical that [Ginsburg’s] death will have an impact on the case, because I don’t think the case was going to split the court 5-4,” Jonathan Adler, a law professor at the Case Western Reserve University School of Law, told Fox News. “The court isn’t split on severability the way it is split on some other issues. Multiple conservative justices on the court have indicated that their approach to severability is not in line with the arguments that the plaintiffs are making in that case.”

Adler said he expected that outcome whether or not Republicans squeeze through a new justice before the hearing begins on Nov. 10.

One of Trump’s appointees, Justice Brett Kavanaugh, has written opinions focused on the issue of severability, arguing that it’s the court’s obligation to leave as much of the law intact as possible. Over the summer, Kavanaugh authored an opinion, which was joined by conservative Justice Samuel Alito, on robocall restrictions, writing that the Supreme Court “presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

Others suggested the court may be reluctant to strike down the health care law in its entirety during the coronavirus pandemic, which has infected more than 6.8 million Americans, the most in the world, and killed close to 200,000.

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“To strike down an entire broad-based law based on a single provision is probably not where the court would want to go,” said Elizabeth Sepper, a law professor at the University of Texas.

The justices are split 4-4, and the lawsuit returns to legal limbo

If Republicans do not confirm a new justice in time for the Nov. 10 hearing, it’s possible the case could conclude with a 4-4 tie, with Roberts siding with the liberal-leaning justices. Should that happen, the case would likely return to U.S. District Judge Reed O’Connor in Fort Worth, Texas, who in 2018 ruled the entire law was unconstitutional.

O’Connor would likely reach a similar conclusion, said Katie Keith, a health law professor at Georgetown University, and the lawsuit would work its way back up through the system, putting the health care law in legal limbo for years.

Parts of the ACA are rolled back 

If the justices strike down the individual mandate as unconstitutional, they may determine that other parts of the law can’t stand without it -- while leaving other parts of the ACA in place.

“That kind of range in the middle, I think, is most likely the scenario we’re looking at,” Keith said. “They find parts of the ACA to be inseverable, not necessarily the whole law, but they could still cause a lot of damage to the ACA itself.”

Parts of the law that are targeted could include the system of exchanges, which are tied to the individual mandate, according to Sepper.

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When Republicans eliminated the provision that required Americans to either buy health insurance or pay a fine, critics warned that decision would cause younger and healthier people to flee from the marketplace, leaving sicker, more expensive patients remaining and causing the market to enter a “death spiral.”

“The argument is that if you take the mandate out, everything falls apart,” Sepper said. “Now, we haven’t had a penalty in place for a number of years, and we’re still getting pretty vigorous participation in the marketplace. It looks like they can actually work without a penalty in place, even though the mandate is still in place.”

The Supreme Court determines the plaintiffs don’t have legal standing

To challenge a law in a federal court, individuals or groups need to prove that they’ve been injured in some way by that law, a requirement that’s known as “standing.” The plaintiffs are challenging a mandate that lacks teeth — the tax penalty for not having health insurance is zero — so it’s unclear how they’re injured by it, the legal experts said.

“There are major questions as to whether the plaintiff actually has standing to file the lawsuit,” Sepper said. “It’s hard to say you’ve been injured by a tax penalty of $0. So that’s a question.”

Chandler noted that conservatives, who he said have “long been concerned” about entertaining policy disputes, or disputes where it’s unclear that someone has been hurt, and liberals could side together to say the plaintiff does not have legal standing.

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“It is possible that the liberals on the court, who might not be eager to have the case decided on its merits, and conservatives, who might be eager to restrict the power of federal courts, might unite and say: ‘There’s no case here. No one’s actually hurt by a tax that is set at $0, and technically that provision might be unconstitutional, but go away.’ I think that is a possible outcome,” he said.