ACA Rising

WASHINGTON – Arizona advocates are breathing “a sigh of relief” this week after the Supreme Court again refused to invalidate the Affordable Care Act, a decision that should preserve the health care program for at least several years.

Thursday’s ruling, the third time the court has upheld “Obamacare,” comes as the number of people signed up for health insurance under the ACA continues to grow under a special open enrollment period. That included more than 23,000 Arizonans, bringing the total number insured through the act to 178,125 as of May 31.

“The strongest case they had by far was the one that failed last week,” said Will Humble, executive director of the Arizona Public Health Association, of ACA opponents. He predicted Monday that the act is here to stay for “at least three and a half years,” given the current administration and the unlikelihood of another court challenge.

Arizona was one of 17 states that joined a Texas lawsuit to overturn the act. Calls to attorneys general in Arizona and Texas were not immediately returned Monday.

But a spokesperson for Arizona Attorney General Mark Brnovich told ABC 15 after the ruling was released Thursday that it is “even more incumbent on Congress to pass legally sound policies to fix our broken healthcare system, further fractured by the Affordable Care Act.”

But Democrats were not nearly so hesitant to react to the ruling.

“Thankfully, the Supreme Court laid down a decisive ruling that protects these provisions,” said Arizona Democratic Party Chair Raquel Terán in a statement Friday, after what she called “the Republicans’ decade-long crusade against the Affordable Care Act.”

The court ruled 7-2 Thursday that the latest challenge to the law had to fail because the plaintiffs – 18 states and two individuals – could not show that they would be harmed by the law and, thus, lacked standing to sue.

“Neither the individual nor the state plaintiffs have shown that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful conduct’ of which they complain,” wrote Justice Stephen Breyer for the majority. The court’s deliberations started and ended there, he wrote.

In a caustic 32-page dissent – twice the length of the majority opinion – Justice Samuel Alito said the court had again “pulled off an improbable rescue” of the act as it had in its first two rulings of “our epic Affordable Care Act trilogy.”

“No one can fail to be impressed by the lengths to which this court has been willing to go to defend the ACA against all threats,” Alito wrote. “Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”

The Patient Protection and Affordable Care Act was enacted in 2010 and “required most Americans to obtain minimum essential health insurance coverage and imposed a monetary penalty upon most individuals who failed to do so,” Breyer wrote.

Opponents first challenged Congress’ authority to impose the penalty, but the court ruled in 2012 that the penalty was a tax and therefore constitutional.

A second lawsuit argued that while the law required states to provide subsidies for low-income insurance customers, not all states participated – the federal government offered the subsidy for states that did not participate. But the Supreme Court ruled in 2015 that the federal government could stand in place of a state for purposes of the law.

The latest challenge came after Congress in 2017 reduced the penalty for not having insurance to zero. Texas and the other states claimed that the penalty of zero dollars could no longer be considered a tax, and that the law should fail.

The court last week rejected that argument, leading Dr. Daniel Derksen, a professor of public health at the University of Arizona, to call the ACA “amazingly durable to withstand three Supreme Court challenges.”

California led a group of 17 states defending the law in the latest suit against Texas, after the Trump administration declined to defend the law.

Humble said the latest case was Republicans’ “last judicial-branch effort with any chance of success.”

The ruling comes as ACA enrollment is trending upward, under a special open enrollment period the Biden administration created this year to help people who lost jobs or health coverage during the COVID-19 pandemic. Open enrollment is usually in the fall, but the special open enrollment period runs from Feb. 15 to Aug. 15.

As of May 31, more than 1.2 million Americans got coverage during the special enrollment period, bringing the total number of policies through the ACA marketplace to just under 9.5 million in the U.S.

Along with expanded Medicaid coverage that was included in the ACA, a record 31 million Americans were covered under one of those plans, the Department of Health and Human Services said earlier this month.

Advocates said the court’s latest ruling also benefits current policyholders who will not have trouble re-applying, as well as new policyholders who have yet to enroll. Derksen called it wonderful news as “over 150,000 Arizonans gained health insurance through the marketplace this year.”

Les Braswell with Advancing Arizona called the gains under the open enrollment “a big deal coming out of the global pandemic.”

But advocates said voters need to remain alert to future efforts to “dismantle the ACA.”

While he does not see a threat on the horizon, Humble said “it’s always possible depending on who’s in Congress, and who’s in the U.S. Senate, and that can change.” 

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