As long-time readers of this blog know, I have worked in Washington DC as an advocate for internal medicine for more than 36 years now (yes, since Jimmy Carter was President!), first for the American Society of Internal Medicine from 1979 to 1998 and since the merger of ACP and ASIM in 1998, for ACP. For 33 of those years, the third branch of government, the Supreme Court, rarely engaged in the major debates over healthcare policy, leaving those decisions to Congress and the Executive Branch.
No more. Under Chief Justice Roberts, this Supreme Court has already done more to drive healthcare policy than any other, at least in my memory. First, it ruled in 2012 that the Affordable Care Act’s individual insurance mandate was constitutional; the same ruling found that the federal government couldn’t require states to expand Medicaid. Last year, it ruled that some for-profit corporations could opt-out of the ACA’s contraceptive mandate because their owners’ religious objections.
It is now poised, as early as next week, to issue two momentous opinions that could affect healthcare for generations. It will decide whether the ACA’s premium subsidies are legal in the 34 states that have opted to let the federal government run their exchanges. And it will decide whether same sex couples have a constitutional right to civil marriage, and, with it, the same rights to access healthcare as other married couples.
First, let’s recap what the Roberts court has already done. When the Supreme Court decided in 2012 to uphold the ACA’s individual insurance requirement, the decision was widely regarded as settling the argument over whether the law’s constitutionality, which it did, but only to a point. The same 5-4 opinion found that it was unconstitutionally coercive for the federal government to punish that states that refused to expand the Medicaid program. By making it voluntary, the court opened the door for states to walk away from expanding Medicaid, even though almost all of the cost is paid for by the federal government. So, as of March 2015, there are 22 states that have chosen not to expand Medicaid, with the result that “nearly four million poor uninsured adults fall into the ‘coverage gap’ that results from state decisions not to expand Medicaid, meaning their income is above current Medicaid eligibility but below the lower limit for Marketplace premium tax credits” reports the Kaiser Family Foundation. In other words, in these 22 states, the very poor (those at or below the federal poverty level) are simply out of luck when it comes to getting help from their states in getting covered, while people who make more than the poverty level can get generous ACA subsidies to afford coverage.
Then, last year, the Supreme Court ruled in the Hobby Lobby case that the ACA’s mandate that health plans cover contraception imposed an unacceptably high burden on the religious beliefs of the company’s owners, for the first time establishing that the religious beliefs of some types of for-profit companies were protected by the Religious Freedom and Restoration Act. The immediate impact of this ruling so far appears to be fairly limited, mainly to Hobby Lobby and its employees and to other “closely held” companies that also have religious objections to the contraception mandate. But the concern all along of critics of the Hobby Lobby decision is that it could open the door to other companies seeking relief from other mandates that conflict with their owners’ religious beliefs. “Once the contraceptive mandate issues have been resolved by courts, the next wave of disputes is likely to involve employers who object on religious grounds to paying benefits to the same-sex spouses of employees. Unlike with the contraceptive mandate, however, these businesses may have a tougher time prevailing . . .” observes Robert Tuttle, a Professor of Law and Religion at The George Washington University. Apparently emboldened by Hobby Lobby, laws have been introduced this year alone in 16 states exempting some businesses from having to provide services to gay couples.
Within days, and no later than June 30, the Supreme Court will rule on same-sex marriage and on the challenge to the ACA’s insurance subsidies. A ruling establishing that same sex partners have a constitutional right to marry would help improve their health and break down barriers to them getting appropriate medical care. As ACP wrote in its recent position paper supporting same-sex civil marriage, “The health and financial benefits of marriage for different-sex couples are widely reported, and contemporary research supports similar benefits in same-sex marriage. On the other hand, denial of marriage rights for LGBT persons may lead to mental and physical health problems. Health benefits associated with same-sex marriage result from improved psychological health and a reinforced social environment with community support.” A Supreme Court decision ensuring a constitutional right to marriage for same sex couples would also presumably give them the same legal protections as other married persons when it relates to hospital visitation rights and decision making. “If LGBT spouses or partners are not legally considered a family member, they are at risk for reduced access to health care and restrictions on caregiving and decision making; further, they are at increased risk for health disparities, and their children may not be eligible for health coverage,” ACP noted in its paper. On the other hand, a Supreme Court ruling that same sex couples do not have a constitutional right to marriage would be a devastating setback in ensuring that same sex couples have equal access to healthcare, and to other legal protections, as other married couples.
Finally, the Supreme Court will rule in the King versus Burwell case, which challenges the legality of the ACA’s premium support subsidies in the 34 states operated by the federal exchanges. If the court rules that the subsidies are illegal, consumer premium contributions will increase by an average of $3300 in those states, according to a new study by the Alvalere consulting firm. Enrollment in ACA-compliant individual market plans would drop by 9.6 million, according to the RAND Corporation and the Urban Institute/Robert Wood Johnson Foundation estimates the number of uninsured would increase by 8.2 million. According to a Commonwealth Fund report, physicians, hospitals, and other providers may lose more than $9 billion in revenue a year and potential closures or reduced services for rural hospitals, community health centers, and non-profit hospitals that serve a disproportionate number of low-income individuals. “If the challengers win, it would throw the health-care law into chaos” writes Vox’s Sarah Kliff. “But if the White House prevails, something equally momentous will have occurred: President Obama's signature legislative accomplishment will actually, really, definitely be here to stay.”
How you feel about the recent Supreme Court rulings on upholding the ACA’s individual mandate, making Medicaid voluntary, and allowing for-profit companies to opt-out of benefit requirements that are contrary to their owner’s religious beliefs, or how you will feel about its upcoming decisions on same sex marriage and the ACA’s premium subsidies, probably depends on your own underlying political leanings. We all pick and choose, applauding court decisions we like while objecting to those we don’t.
Yet what is clear to me is that the Roberts court will have done more to shape the future of American healthcare than any other in decades, and the consequences of its decisions will be debated for generations. If that doesn’t define an activist court, than I don’t know what does.
Today’s questions: What do you think about the Roberts Court’s activism on healthcare? How will future historians judge it?