Texas and 17 other states are challenging the constitutionality of the Affordable Care Act in in front of the U.S. Supreme Court in November. And over the weekend, President Trump nominated Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit to replace the late Ruth Bader Ginsburg on the high court.
Barrett could cast a deciding vote on the law known as Obamacare if the conservative judge gets a fast-tracked confirmation.
Houston Public Media spoke with Elizabeth Sepper, a law professor at UT Austin, about California v. Texas, and how its test of the individual mandate could affect health care access in Texas.
Read or listen to our interview with her below, edited for length and clarity.
How does this one piece — the individual mandate — call other parts of the Affordable Care Act or the entire piece of legislation into question altogether?
One of the arguments made is that you need (the individual) mandate in order to get people into the insurance marketplaces and make them affordable, that these reforms are all linked to one another. So if you take out one, you have to take out the rest from that.
There’s an even more ambitious argument that if you take out the individual mandate — and that’s what the district court here in Texas held — that you have to strike down all of the Affordable Care Act, ranging from Medicaid expansion to people up to age 26 being on their parent’s insurance.
While there are 18 states challenging the ACA, there are also 17 states defending it. That effort is led by California. What is the legal argument defending the Affordable Care Act?
Well, it’s a good argument. This challenge is exceptionally weak. It basically relies on thinking that Congress secretly repealed the Affordable Care Act in 2017 by bringing the tax down to zero.
The states defending the law also argue that having a tax penalty of zero doesn’t mean that Congress wasn’t acting under its tax power. We're really pointing to the fact that Congress couldn't possibly have repealed the entire ACA or even all of the exchange reforms in 2017 without anyone noticing.
President Trump nominated circuit judge Amy Coney Barrett over the weekend. How does her potential seat on the Supreme Court change the outlook of the case?
The case remains weak, but there are reasons to worry. Amy Coney Barrett, in particular has indicated some hostility to the Affordable Care Act and has basically said that she would have sided with the dissent in 2012. So that’s a legitimate reason for concern.
The most recent numbers show that around 1.1 million Texans are enrolled in Obamacare. How would this case affect this group of Texans?
If the Supreme Court were to agree with the Fifth Circuit, then 1.1 million Texans will lose their insurance. Basically, overnight. It would depend how far reaching the opinion was, if it went in the direction of siding with Texas.
It could just be the exchange system that would be rendered non-functioning or it could be the whole act or perhaps other provisions in the act.
The repeal of the Affordable Care Act might affect more than the people enrolled in Obamacare. What might be some of the consequences for all Texans, including those with private insurance?
The whole act really touches the lives of every single Texan. It, of course, set up the exchanges, but it also did all sorts of other reforms.
One of the important provisions are the prohibitions on annual or lifetime limits. People regularly ran into these limits when they had severe disease. If you’re diagnosed with stage four cancer, you easily could run into a million dollar annual or lifetime limit very quickly. Or if you have an infant born early, who spends a significant time in the NICU, they’re going to burn through their lifetime insurance benefits in the first few months of life. That was the insurance marketplace that we had before the Affordable Care Act. I think people really have forgotten about that.
As for people with employer-based insurance, just from an economic standpoint, if we add 1.1 million uninsured people to the pool of Texans, what we’re looking at is radically higher prices in premiums. That’s going to eat away at wages and economic growth. The numbers are clear, adding insured people to the state actually reduces costs for people who have private insurance.