The Affordable Care Act (ACA) was again before the Supreme Court this week, when the justices heard oral arguments in a case that holds the entire law in the balance.
During the two-hour-long hearing, the court heard from counsel representing blue states and the House of Representatives, who are aiming to save the law, and red states and the Trump administration, who argue it should be struck down.
Legal experts said the signs point to the court upholding the majority of the law even if its individual mandate is in peril.
"From the perspective of the healthcare industry obviously this is a great outcome," Michael Kolber, partner at Manatt Health, told Fierce Healthcare.
As the healthcare industry continues to break down Tuesday's proceedings in anticipation of a ruling, which could come as early as February or March, here are a couple of things you may have missed about the hearing:
More time spent on standing than severability
The question of "severability" is at the heart of this case: If the individual mandate is indeed invalid, can it be excised from the remainder of the law? Red states and the Trump administration argue no, and a Texas district court judge agreed with them in late 2018.
However, on Tuesday, while the justices did spend plenty of time probing both sides on severability, a larger chunk of the hearing was instead spent on the question of whether red states had the standing to bring the case at all.
Kolber said it appears possible, based on the questioning, that enough justices may agree that there is not standing to bring the case, a ruling that would also keep the ACA intact.
He said that as the plaintiffs didn't make an especially strong case that they were harmed by the individual mandate specifically, saying they have standing to bring the case could set a precedent for future cases that allows suits to challenge a broad law on the grounds that a piece of it is invalid, even if that's not the piece that injured them.
"I think there just may be more common ground on the standing question," Kolber said.
House brings in veteran to defend ACA—again
The House was not represented by a member of its usual counsel on Tuesday but instead by Donald Verrilli, who made a second appearance before the Supreme Court in defense of the ACA.
As U.S. solicitor general, Verrilli successfully defended the law on behalf of the Obama administration in the National Federation of Indepent Business (NFIB) v. Sebelius, the landmark 2012 decision that upheld Congres' authority to enact the ACA.
Verrilli has been in private practice since leaving the federal government but has been working on this case with the House's legal team pro bono, according to an article from Law.com. He also worked with the House on preparing the case to go before the Fifth Circuit in the summer of 2019.
Susan Feigin Harris, partner at Morgan Lewis with a focus in healthcare, told Fierce Healthcare that Verrilli's performance Tuesday was quite strong.
"He just laid out the arguments so clearly and was just so forceful," she said.
In another parallel to the NFIB case, legal experts said the oral arguments indicate that Chief Justice John Roberts is again set to be a pivotal player in the decision. He appeared skeptical Tuesday of arguments against severability, making note that Congress zeroed out the mandate penalty but left the remainder of the law in place.
Roberts also referenced lengthy debates about broccoli in the NFIB during Tuesday's hearing, where critics argued that if the ACA could force people to buy insurance, the federal government could also force people to buy broccoli so that they can eat healthier.
Roberts asked Verrilli about the change in tone over the mandate over the past several years: In 2012, the Obama administration painted it as central to the law, while now blue states and the House argue it can be cut from the law entirely.
“We spent all that time talking about broccoli for nothing?” Roberts said.
Amy Coney Barrett may not be a key vote after all
All eyes were on newly seated Justice Amy Coney Barrett on Tuesday. Barrett's confirmation was fast-tracked to approval on Oct. 26 ahead of the presidential election, and the California v. Texas case was the hottest topic at her confirmation hearings.
Democratic senators largely portrayed her confirmation as a death sentence for the ACA during those hearings. However, legal experts said that based on the flow of oral arguments, she may not end up being the linchpin in a decision.
Analysts at Lawandcrime.com wrote that while Barrett didn't give a clear look at which way she may land on the case, comments from Roberts and Justice Brett Kavanaugh indicate they'll be the key conservative votes to uphold the law.
"After all of the congressional sturm and drang, Barrett did not tip her hand at all on the issue central to the ACA’s continued survival, and she did not appear to ask a single question about severability," according to the article.