A sharply divided U.S. Supreme Court on June 28 upheld the constitutionality of the Affordable Care Act, also known as “Obamacare,” the New York Times reports.
The ACA, passed in 2010 with essentially no Republican support, is regarded as the signature achievement of the administration of President Barack Obama. Its primary goal is to provide health insurance for most of the 30 to 50 million Americans generally estimated to be currently uninsured.
The ACA’s linchpin is the so-called “individual mandate,” a requirement that, starting in 2014, essentially all Americans must purchase health insurance. The Act provides for subsidies for those unable to afford to comply. The mandate was originally a conservative idea, devised at the right-wing Heritage Foundation in the early 1990s in response to President Bill Clinton’s proposed universal coverage bill. Once Obama embraced the mandate and Democrats in Congress wrote it into the ACA, however, Republican opposition became almost monolithic, with some characterizing the requirement in apocalyptic terms as a “threat” to fundamental liberty.
In a move that surprised many court watchers, Chief Justice John Roberts, usually a reliable conservative vote, sided with the court’s four more liberal justices to uphold the mandate. Justice Anthony Kennedy, a Republican appointee who sometimes sides with the liberals and who many thought might vote to uphold the ACA, went with the conservatives, who would have struck down the law entirely.
Obama lauded the decision hours after it came down in a short televised address to the nation. The president plainly saw this as an opportunity to attempt to resell the ACA to the public—since the law’s passage, polls have consistently shown that while a majority disfavors the mandate and the ACA in general, many of the law’s specific provisions are overwhelmingly popular. Obama harped on these provisions.
“First,” he said, “if you’re one of the 250 million Americans who already have health insurance, you will keep your health insurance—this law will only make it secure and more affordable. Insurance companies can no longer impose lifetime limits on the amount of care you receive. They can no longer discriminate against children with pre-existing conditions. They can no longer drop your coverage if you get sick. ... They are required to provide free preventive care, like checkups and mammograms.”
He also noted the provision, already in effect, that people under 26 must be permitted to remain on their parents’ policies.
The president explained the mandate in terms of personal responsibility. Emergency rooms may not turn away uninsured people in need, and the costs of treating such people are ultimately passed on to everyone else.
Presumptive Republican presidential nominee and former Massachusetts Gov. Mitt Romney slammed the court’s decision and tied it to the upcoming election in his televised remarks. “If we want to get rid of Obamacare, we’re going to have to replace President Obama,” Romney said.
Romney said that the ACA would “add trillions to our deficit and to our national debt,” even though the bipartisan Congressional Budget Office has stated that the law will reduce the national debt. Romney also said that “up to 20 million Americans” would lose their current insurance, even though the ACA includes no provision that would work this result.
Romney is in a bind in using the ACA as a cudgel against Obama, given that, as governor of Massachusetts, he was instrumental in enacting a law most analysts regard as legally indistinguishable from the ACA, and which also includes a mandate.
Reaction to the Supreme Court’s decision among LGBT groups was overwhelmingly positive. “The Affordable Care Act will finally allow people living with HIV to access medical advancements made years ago but that have so far remained out of reach of many,” Lambda Legal HIV Project Director Scott Schoettes said in a statement.
“The Affordable Care Act addresses a number of the barriers LGBT people face in obtaining health insurance, from financial barriers to obtaining affordable coverage to discrimination by insurance carriers and health care providers,” Human Rights Campaign President Chad Griffin said in a statement.
“The ACA represents the largest reform to the health care system in over 40 years, and the most significant effort ever undertaken to address health disparities for LGBT patients seeking care,” said the National Center for Lesbian Rights.
“This great victory for all Americans is especially important to LGBT people who are disproportionately lower income and suffer from life-threatening health disparities,” said L.A. Gay & Lesbian Center Chief of Staff Darrel Cummings.
“Today’s ruling upholds critical protections for transgender people and their families,” a statement from the National Center for Transgender Equality said.
The lone significant LGBT dissenter appears to have been the Log Cabin Republicans. “By upholding even the most intrusive provision of Obamacare, the individual mandate, the court has enabled Washington’s addiction to big government and coercive taxes,” Log Cabin Republicans Deputy Executive Director Christian Berle said in a statement.
Mainstream response to the decision for the most part has broken along party and ideological lines, with Chief Justice John Roberts the lightning rod. Numerous Democrats and liberal commentators applauded the conservative Roberts. Sen. Charles Schumer, D-N.Y., “welcomed [Roberts’] display of judicial independence,” the Washington Times reported. Congressional Delegate Eleanor Holmes Norton, D-D.C., praised Roberts for “abandoning his conservative colleagues on the bench” and acting “judiciously, not politically.”
Conversely, many on the right lambasted the Chief Justice, some going to seemingly absurd extremes. Television and radio personality Glenn Beck, for example, is marketing T-shirts with Roberts’ picture over the word “coward.” Right-wing radio talkshow host Michael Savage speculated that epilepsy medication might have caused “mental slowing, forgetfulness and other cognitive problems” for the Chief Justice, the Huffington Post reported. (It is not clear whether or not Roberts uses such medication.)
The decision itself, however, is more nuanced than this reaction might suggest. While Roberts did indeed vote to uphold the individual mandate, he did so on extremely narrow grounds. The main argument in favor of the mandate’s constitutionality was that it fell within Congress’s broad power to regulate interstate commerce. Roberts rejected this argument along with the four other conservatives, the first time since the 1930s that a majority of the court has held such a major piece of federal legislation invalid under the Constitution’s Commerce Clause.
Roberts upheld the mandate only as an exercise of Congress’s power to tax, reasoning that the penalty the ACA imposes on those who do not obey the mandate was in effect a tax.
“While as a matter of politics I think it’s great that the individual mandate was upheld ... it was done in such a way as to undermine Congress’s power to act on economic issues under the Commerce Clause,” New York Law School Prof. Arthur Leonard, an expert on LGBT legal issues, said in an email to LGBT activist Rex Wockner. “While President Obama is celebrating, Chief Justice Roberts has pulled another sneak attack here.”
In addition to the mandate, the second major issue before the court involved the ACA’s mandatory expansion of Medicaid, a federally funded low-income insurance program administered by the states. The ACA requires states to opt-in to the expansion or lose all Medicaid funding. Seven justices, including typically liberal Justices Stephen Breyer and Elena Kagan, sided with Roberts and the other four conservatives in striking this requirement down as overly coercive and a violation of federalism principles. The upshot of this holding is that a state’s participation in the Medicaid expansion is now essentially voluntary.
“Without the fully contemplated Medicaid expansion, a piece of the projected savings from the overall package is lost, potentially making the entire thing much more expensive for the federal government” and potentially financially unworkable, according to Leonard.
Meanwhile, as a peek at the inner workings of the Supreme Court of a type usually unavailable until years after the fact, sources inside the court apparently aligned with the conservative bloc appear to have told CBS reporter Jan Crawford that Roberts had initially voted to strike down the mandate but changed his mind in the month preceding the ruling.
After this switch, Crawford wrote, citing “two sources with specific knowledge of the deliberations,” “Roberts then withstood a month-long desperate campaign to bring him back to his original position,” with Justice Kennedy being “relentless” in his bid to change Roberts’ mind. The four conservatives were allegedly so incensed with Roberts for refusing to do so that, contrary to standard practice when there is more than one decision, they refused to even mention his reasoning in their dissent.
The role the health care debate will play in the presidential campaign is unclear. As Frontiers goes to press, public support for the ACA has increased since the Supreme Court’s decision, with the breakdown now 45-48 percent favorable-unfavorable, according to ABC News. A post-decision poll by the Kaiser Family Foundation shows that 56 percent of respondents believe Obamacare opponents should give up efforts against the law and focus on other issues.