Ratcheting Up The Repeal Threat

The Supreme Court agreed to hear a lawsuit that misconstrues a single clause of the Affordable Care Act in an attempt to defund it. But for consumers, nothing has changed.

The Latest Conservative Attempt To Sabotage Obamacare Just Got A Lot More Serious

In a surprise move late last week, the Supreme Court agreed to hear the case of King v. Burwell, a lawsuit seeking to strip premium tax credits from people living in states with a federally-operated insurance marketplace. If the lawsuit, which employs an overt misreading of the Affordable Care Act, is successful, it would hike premiums by triple digits and make health coverage unaffordable for millions of Americans. We have written about the case before, when a panel of the Fourth Circuit Courts of Appeals ruled on it and unanimously upheld the law. But that wasn’t enough for at least four Justices, who now think it worthwhile that the case be argued in front of the nation’s highest court.

Make no mistake, the lawsuit is a strategic attempt at repeal by another name by ideological conservatives. Here are five key things to keep in mind about it:

1. The Affordable Care Act is working. Millions of people have the peace of mind of knowing they have quality, affordable coverage when they need it most. Thanks to the ACA, 10.3 million people now have health care who did not have it before. That includes 7.1 million people who are enrolled in state and federal marketplaces and currently paying their premiums.

2. Nothing has changed as a result of the Supreme Court’s decision. This lawsuit will not stop people from choosing health care that works for them, with access to the financial assistance available, when open enrollment begins November 15. Consumers should be confident that financial help will be available for them to help make health coverage more affordable. In an event today at the Center for American Progress, Health and Human Services Secretary Sylvia Matthews Burwell reassured that “open enrollment this year will be a positive experience for the consumer.”

3. The law is clear. Those challenging the law cherry pick a single clause in the law’s text where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State” — and not the federal exchange (which operates in 36 states). They ignore the entire intent of the law, which was to provide premium tax credits for anyone eligible, regardless if they lived in a state with its own marketplace or a federal marketplace. Indeed, in the ruling of the Fourth Circuit, Judge Roger Gregory quoted a longstanding legal doctrine, writing, “We ‘will not usurp an agency’s interpretive authority by supplanting its construction with our own.’ ” The authors of the law also have written that “none of us contemplated that the bill as enacted could be misconstrued” as the King lawsuit attempts to do. We are confident the Supreme Court will agree.

4. This is an attempt at repeal by another name. This lawsuit is unquestionably a part of a wider effort to try to undermine and repeal the Affordable Care Act. The lead plaintiff in a similar case, Jacqueline Halbig, was an appointee in the George W. Bush administration. Another plaintiff in the Halbig case, Sarah Rumpf, described herself as a “Republican operative.”

5. Repealing the tax credits would make insurance inaccessible for millions of Americans and could mean the difference between life and death. Of the 5.4 million people enrolled in the federal marketplaces, 87 percent picked a plan using federal tax credits, lowering the amount of what they paid for their monthly premium from $346 to $82, on average. Without the tax credits, these people would be paying an average of $264 more per month, a 322 percent increase. The Rand Corporation modeled what would happen without subsidies and found that “in scenarios in which the tax credits are eliminated, our model predicts a near ‘death spiral,’ with very sharp premium increases and drastic declines in individual market enrollment.” It is no exaggeration to say that this decline in enrollment could cost some people their lives.

On the surface, the case presents an all or nothing choice for the Court’s conservatives. Either they reverse the Fourth Circuit decision that did not defund the law and hand a sweeping victory to conservatives who oppose the Affordable Care Act; or they affirm the court’s decision, earning the gratitude of the people who will die without a fully operational law and the scorn of the law’s opponents. ThinkProgress Justice editor Ian Millhiser writes that there is also potentially a third way that could placate conservative and save the ACA at the same time.

BOTTOM LINE: Despite the unexpected news that the Supreme Court has agreed to hear King v. Burwell, nothing has changed: financial assistance is available to consumers and open enrollment will proceed starting November 15. We trust that when the Supreme Court does make its decision, common sense and decades of legal precedent will prevail.

Like CAP Action on Facebook and follow us on Twitter!