COLUMBIA, S.C. (WIS) - South Carolina is one of the respondents in a Supreme Court case dominating the hearings for President Trump’s Supreme Court nominee, Amy Coney Barrett. The case, California v. Texas, could reshape healthcare policy in the U.S.
South Carolina is part of the group of states, with Texas taking lead, arguing the entire Affordable Care Act, Obamacare, should be struck down.
The basis for removing the law centers around the changes Congress made to the individual mandate, the part of the law that initially requiring people to pay a tax penalty if they didn’t have health insurance, in the Tax Cuts and Jobs Act.
“In 2017…Congress eliminated [the individual mandate], but the way they did it was instead of erasing it from the law, they dropped the penalty to zero,” University of South Carolina Assistant Professor of Health Law Jesse Cross said.
In addition to a technical question about the parties' standing to challenge the law, Cross explained the court now is faced with two questions.
“One, is it constitutional to still have a zero-dollar penalty in the law? And two, can the rest of the act survive without it if that provision is unconstitutional?” he said.
Cross says you can think of the current state of Obamacare as a house.
Using this metaphor, the individual mandate originally designed as one of the house’s pillars.
Cross says despite people originally believe that the mandate was holding up the whole house, a couple of years later people found removing the pillar wouldn’t leave the whole house in shambles.
As Cross explained, while an original pillar of the ACA looked nice, it wasn’t doing all the work people expected it to do – and, it turned out, it didn’t need to do that work in order for the law to function, Cross explained.
“The experience so far has been that insurers can survive just so far without it. Generally, the market experience has been that you can remove that individual mandate and the rest of the Affordable Care Act will still create a profitable, functional, insurance market,” he said.
The Supreme Court will be faced with the question of whether the rest of the house needs to be removed if the pillar is taken away.
While similar cases have come to the Supreme Court before, a full challenge to the Affordable Care Act has not previously come up with Justice Kavanaugh or Gorsuch on the bench.
So, what can the Court do?
If the Court decides that this pillar must go, it can use what’s called severability, Cross said. That means keeping parts of the law while losing others. For example, parts of the wide-ranging law like Medicare cost reductions could remain while preexisting conditions could go. If not, the whole house could come apart while the law is struck down.
That case comes up for oral arguments on November 10th. And most likely be decided, according to Cross, in 2021.