The High Court and Your Health: The Controversies, Cases and Conclusions that Shape Access to Care

The Supreme Court has been the battleground for debates over healthcare in the U.S. for the better part of a decade (Source)

In 2012, a high court’s ruling on states’ rights left millions of indigent people stranded without insurance. A single justice’s vote in favor of an individual mandate forced every citizen to purchase health insurance or pay hundreds of dollars in taxes. Nine unelected judges had the power to render an entire healthcare system plan obsolete with the stroke of a pen. Now, in 2020, another court will make a decision that may drastically change how healthcare works in this country.

If this doesn’t sound like democracy, and if it certainly doesn’t sound like American democracy, then take a closer look. This is the story of healthcare in the United States of America, and the chapter freshest in our minds—the Affordable Healthcare Act—was written by the courts.

It’s a familiar setting for most of us: U.S. healthcare in the first decade of this century featured rapid increases in insurance costs and widespread lack of access to insurance for the sick, healthy, poor, and middle-class alike. The public’s dissatisfaction created a pressure cooker for policymakers, which in turn yielded an infamous attempt at a new healthcare system: the Affordable Care Act (ACA).

For many Americans, the growth of the government’s role in healthcare through the ACA was seen as a massive reach of Uncle Sam’s arm from the legislative desk to the operating table. It was an expensive, large program that made a large portion of the population skeptical of how well “social medicine” could function in the U.S. In reality, however, the ideals behind the ACA may have been less radical than critics suggested. UNC professor Jonathan Oberlander argues that the ACA was a rather incremental step toward expanding access, one rooted in the idea of a single payer system that was first put forth in the U.S. in the 1940s.

Two components of the ACA incited especially intense criticism: the individual mandate and the expansion of Medicaid. Within two years of its passage, the ACA tome landed squarely on the podium of the United States Supreme Court in the case National Federation of Independent Businesses (NFIB) v. Sebelius, with these two elements in the limelight. Thus, nine Americans were left to decide the fate of healthcare for the nation. 

The court was as divided as the American public, and didn’t rule entirely in favor of or against the ACA. 

The individual mandate levied a fine on anyone who did not purchase health insurance. This mechanism was traditionally defended through the federal government’s right to intervene in conflicts regarding interstate commerce, a power clearly defined in the Constitution. NFIB, however, argued that the mandate was an overstep of the federal government’s power since it regulated inactivity.

The Supreme Court indeed found the Commerce Clause a weak defense for the mandate. However, the court used the federal government’s tax power to justify the fine. Legislative attorneys Erika Lunder and Jessica Staman explain that the court found the mandate to be within the “scope of the taxing power, because it was not prohibitory… and would be collected just like any other tax by the IRS.” Simply put, the fine for not purchasing insurance was not too hefty and only taxpayers had to pay it, so the Supreme Court ruled it constitutionally permissible as a behavior-regulating tax.

The ACA’s Medicaid expansion plan did not curry as much favor with the high court. 

The court struck down the federal government’s plan to withhold funding from states that did not expand Medicaid to certain poor people. The court called the plan “coercive” and a violation of state sovereignty (ability to govern independently in appropriate spheres), which is guaranteed by the Tenth Amendment. These decisions had immediate effects on policy implementation, and thus tangible impacts on people's access to care.

Families with income slightly more than 100 percent of the Federal Poverty Level (in 2012, that was merely $23,238) were “too poor” to be eligible for premium tax credits (subsidies for health insurance plans), but also “too rich” to receive Medicaid. Because states were not required to expand their Medicaid program according to the NFIB v. Sebelius ruling, these Americans live in the dangerous zone of the “Medicaid Gap.” According to a Public Health Reports journal article from 2016, there is virtually no access to affordable coverage in the “gap”. 

It’s not just the poor who are affected by the NFIB v. Sebelius ruling. Healthcare practitioners also had to change their approach when the court upheld the ACA. Steve Ringel, who is a Vice President at the University of Colorado Hospital, wrote in the Annals of Neurology that the influx of patients who were previously uninsured put pressure on physicians to rapidly adapt. Specifically, doctors needed to spend more time with patients and shift away from fee-for-service medicine in order to meet new performance reporting standards.

Even after the dust of NFIB v. Sebelius settled, the court system continued to significantly impact American healthcare. 

While many people feared (or cheered) that Trump would autonomously “repeal and replace” the ACA when he took office, constitutional checks and balances meant that Congress would have to be on board for any major changes. According to Timothy Stoltzfus Jost and Simon Lazarus in the New England Journal of Medicine, Trump could never repeal the ACA by executive order because the law was implemented under a rule called the Administrative Procedure Act. In order to avoid a battle with the courts, the executive branch delayed acting on the ACA.

In 2017, Congress passed the Tax Cuts and Job Act which set the individual mandate penalty of the ACA to zero, essentially rendering the tax moot. In a 2018 lawsuit titled Texas vs. U.S., a group of twenty states sued the federal government over the matter, claiming that without actual tax revenue, Congress’s taxation power cannot apply to the individual mandate and thus that it is unconstitutional. Moreover, the plaintiffs argued that since the individual mandate was described as “essential” to the ACA when it was enacted, the provision is inseparable from the rest of the law, meaning the entire ACA is unconstitutional.

Although the federal government is a defendant in the case, the Trump administration supported the plaintiff and stated that except for a few specific clauses, the ACA should be struck down. This was a rare legal spectacle, as the federal government rarely takes a position against a federal law.

On Dec. 18, 2019, a circuit appeals court heard the case and determined that the zero-dollar individual mandate was in fact unconstitutional. However, instead of making a final call on the ACA’s fate, the circuit court remanded the case back to a lower court to decide how much—if any— of the ACA will survive given the individual mandate’s unconstitutionality. 

The magnitude of the potential ramifications of this lower court’s decisions and the probable subsequent appeals cannot be overstated. From removing protections for people with pre-existing conditions to altering the Medicare/Medicaid policy innovation center, from restructuring Medicaid payment plans to eliminating some out-of-pocket payment caps, the upcoming decision of the lower court has the potential to drastically impact citizens and the system alike. 

Just as in 2012, a judicial institution will effectively serve as a policy-making body as Texas vs. U.S. is decided in the coming months. Of course, Congress, the president, state legislators, and other officials will influence how the story of the ACA ultimately concludes, but the courts’ role in implementation is too great to assume that only elected legislators are the responsible actors. 

In many respects, the American healthcare system still fails to serve its people. With the highest healthcare costs in the world, our grave maternal mortality rates, rampant growth of non-communicable diseases, and astronomical pharmaceutical prices indicate a gross waste and opportunity loss. Americans continue to demand improvements to the healthcare system: in a poll by Yale and George Mason Universities, the most important issue to registered voters in the 2020 election is healthcare. Yet before lawmakers can attempt to create a healthcare system that will satisfy the public, they must design a system that passes muster before the courts. This means that elected lawmakers must heavily weigh and anticipate the legal challenges their policies may face, even at the expense of timeliness and adequacy for the people.

This story is not a call to reform the judicial system, or even a claim that the courts have no business influencing healthcare policy. This story is recognition of a reality that is a little less than purely democratic and far short of perfect, of a current policy problem that is deeply intertwined in the structure of our system. The judicial system has undeniable power to shape Americans’ access to care, and as both readers and main characters in this saga, it’s our job as citizens to understand this dynamic and play as active a role as possible in drafting the final chapters.