Today the Supreme Court hears oral arguments in California v. Texas, a case that could determine the fate of the Affordable Care Act (ACA), the landmark legislation signed into law by President Barack Obama in 2010. As then Vice President Joe Biden, now President-Elect, said at the time, caught on a hot mic, the law was a “big fucking deal.” For Ohioans and the country, it remains so.
California v. Texas is a product of an attempt by eighteen attorneys general to unravel the Affordable Care Act from one of its well-known cores: the so-called “individual mandate.”
As Attorney General, Mike DeWine did not join his Republican counterparts, a decision that current Attorney General Dave Yost reaffirmed by submitting amicus briefs arguing that the mandate is severable from the rest of the ACA. At the time of the filing, Yost noted, “If a patient has a tumor, you don’t kill the patient. You cut the tumor out. That’s what we think we should do here.” With the briefs and his statement, Yost signaled that he, unlike his Republican counterparts around the country, understands the dire consequences of a potential undoing of the entire ACA. (Correction: An earlier version of this commentary failed to mention that Attorney General Yost filed amicus briefs in support of ACA severability.)
California v. Texas is the Supreme Court manifestation of an earlier case, Texas v. Azar, in which the 5th circuit district court held that the ACA should be struck down in its entirety. The court’s reasoning was that because, in 2017, as part of the Tax Cuts and Jobs Act, Congress reduced to zero the “shared responsibility payment” for not carrying a minimum level of health insurance, the “individual mandate” that required them to carry that insurance must also be repealed.
But here’s where things start to go off the rails. The 5th circuit held that the individual mandate is, in a sense, the lynch pin of the whole ACA, and that without it, the whole bill — a more than 900-page piece of legislation with all sorts of important provisions — must also be struck down.
All of it.
The technical issue at hand is that of “severability,” namely whether the rest of the ACA can or cannot stand without the individual mandate. It’s a textbook case of using a chain saw where a paring knife would have done the job.
I won’t bore readers with a treatise on the merits of the severability argument (short take: I follow the lead of constitutional law experts in finding the argument unpersuasive). But I do want to highlight the stakes for Ohio.
According to the Centers for Medicare and Medicaid, about 200,000 Ohioans currently receive their private health insurance through the ACA’s federally subsidized marketplace. Those are the 2020 numbers, however, and it is worth noting that oral argument is being heard in the middle of the ACA’s open enrollment period, when health care advocates are busy at work helping Ohioans find affordable health insurance coverage. Given the composition of the court, now stacked with three Trump appointees, the ACA’s insurance marketplaces are considered the most likely part of the ACA to fall. The viability of those markets were, after all, supposedly bolstered by the ACA’s individual mandate and shared responsibility payment.
The 5th circuit found that the entire ACA must fall. But Ohioans need to know that the ACA is much more than a mandate to purchase subsidized health insurance.
Most dramatically, were the Supreme Court to agree with the 5th circuit’s decision as it stands, Ohio’s Medicaid expansion could fall with the ACA. Currently, about 600,000 Ohioans access critical health care services through the Medicaid expansion. These services have protected those Ohioans during COVID-19, but also afford them a wide range of health care services, from wellness checks to cancer care to mental health and addiction recovery services.
The ACA also does much more than provide access points for health care services. The bill brought critical investments for health care research, including more than 40 projects totaling at least $92 million dollars for research conducted in Ohio, the majority coming from the Patient Centered Outcomes Research Institute, which the ACA established.
The ACA also introduced new “community benefit” requirements for Ohio’s non-profit hospitals, which — in exchange for the generous tax benefits they receive — must now undertake more extensive efforts to understand the needs of surrounding communities and develop a plan to address those needs. Some parts of Ohio have seen an uptick in community benefit activity in recent years, much to the benefit of long-neglected communities. The result has been a renewed interest in some of our state’s elite health care institutions in caring for the communities in which they are located.
The ACA, a sweeping piece of landmark health care legislation, contains many provisions more than most people are aware. Though many experts believe that the Supreme Court is unlikely to simply follow the 5th circuit and strike down the entire ACA, it’s worth knowing some of the less-known items contained in the bill, to appreciate the vision of health care reform contained in it.
One does not need to be a constitutional scholar to recognize that none of these items have anything to do with the individual mandate.
Nonetheless, we have good reason to worry about a sweeping Supreme Court decision that could strip about a million Ohioans of their access to critical health care services. We won’t know the outcome of California v. Texas until the spring, so it’s possible that Congress could act and there are some executive actions President Biden could take to soften the bow. But if the ACA falls, it will mostly fall to our state’s leaders to figure out how to make up the difference. And then we will learn just how important the ACA was to Ohio.