The “Too Much Talent” band performs in front of the U.S. Supreme Court as arguments are heard about the Affordable Care Act, Tuesday, in Washington. (Alex Brandon / Associated Press)

The “Too Much Talent” band performs in front of the U.S. Supreme Court as arguments are heard about the Affordable Care Act, Tuesday, in Washington. (Alex Brandon / Associated Press)

Editorial: Biden, Congess can restore health of the ACA

Statements by two justices offer hope the ACA’s constitutionality will be upheld. But work remains.

By The Herald Editorial Board

It doesn’t offer the certainty of an actual Supreme Court decision, but statements in court Tuesday by two of the U.S. Supreme Court’s now six-member conservative bloc may signal that a court majority will uphold the Affordable Care Act and health care coverage protections for millions of Americans, including more than 212,000 enrolled in ACA plans in Washington state.

If those conversations become the basis for a court decision, strengthening of the ACA then should become a focus for the incoming Biden administration and for the law’s supporters in Congress.

During oral arguments before the court in California v. Texas, Chief Justice John Roberts and Justice Brett Kavanaugh appeared to disagree with the lead attorney from Texas seeking a ruling that finds the ACA — also known as Obamacare — unconstitutional, following Congress’ decision in 2017 to strike down a key portion of the act that opponents said meant the entire health care law had been legally hollowed out.

The attorneys general for 18 states, led by Texas, have argued that when Congress amended the ACA to remove the financial penalty imposed for those who didn’t purchase or sign up for health care coverage it meant the entirety of the law had been struck down as well. Attorneys general for 17 other states, including Washington state, are defending the law, claiming that Texas and the other states have no legal standing to bring the case and that Congress intended to remove only the mandate’s fine and not repeal the entire ACA.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle Hawkins, the Texas solicitor general arguing for the plaintiffs, The Washington Post reported. “I think, frankly, that they wanted the court to do that. But that’s not our job.”

More likely, Republicans in the House and Senate, who had struggled since the ACA was made law in 2010 to repeal and replace it, had hoped that removal of the individual mandate would be enough to keep enough people from purchasing insurance, leading to a “death spiral” as less-healthy and more costly enrollees sapped the program. That didn’t happened, forcing Republican states to ask the courts to do the deed.

Not that President Trump nor Republicans haven’t done their best to undermine the ACA and its protections, even as the law and its provisions continue to gain support among the American public.

Recent polling data from Kaiser Family Foundation shows that a 55 percent majority of Americans polled view the ACA favorably, against 39 percent who view it unfavorably. An even larger majority — 79 percent — said they did not want to see the Supreme Court overturn the ACA’s protections for those with pre-existing conditions, protections that prevent insurance companies from denying coverage or charging higher premiums for those with underlying health issues, including heart disease, diabetes, cancer and more.

Unable to scuttle the ACA in Congress, Trump and congressional Republicans have worked to weaken it. Along with zeroing out the individual mandate, the Trump administration eliminated federal subsidies for co-payments, shortened the ACA enrollment period, promoted “skinny plans” that traded extremely high deductibles and weak coverage for lower premiums, cut funding for the government’s website for marketing and advertising, cut support for nonprofit “navigators” who helped people enroll, allowed states to seek waivers to add work requirements for Medicaid enrollees and refused to reopen enrollment after millions lost their jobs and their insurance coverage during the pandemic.

President-elect Biden, during his campaign put his support behind strengthening Obamacare and said he intended to expand it through the inclusion of a public health insurance option, similar to Medicare, an initiative that was offered as a moderate alternative to the Medicare for All health care reforms sought by Sen. Bernie Sanders, I-Vermont, and others.

With Democratic control of the Senate at best uncertain if not unlikely now, neither of those reforms are likely to win consideration in coming years.

But Biden and Democrats in Congress can undo much of the damage of the last four years. Most of the attempts to limit the effectiveness of the ACA were adopted through executive action by Trump, which Biden can reverse with executive orders of his own.

Open enrollment for ACA plans began Nov. 1 and continues until Dec. 15 for most Americans, through Jan. 15 for Washington residents. Washington state residents can enroll through And the good news is that those enrolling will find an increase in available plans; nearly doubling to 13 from only seven in 2019; and with an average 3.2 percent decrease in premiums from 2020.

A Supreme Court decision in the coming months that echoes Tuesday’s sentiments of Justices Roberts, Kavanaugh and the court’s three liberal jurists will preserve a program that provides necessary resources and protections for the health of all Americans. The Biden administration and Congress should use that affirmation of the ACA’s constitutionality to further strengthen and expand those provisions.

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