The death of liberal Supreme Court Justice Ruth Bader Ginsburg could lead to more rounds of litigation for the Affordable Care Act, whose fate hangs in the balance in a case to be heard in the next two months, legal experts say.
The court is scheduled to hear oral arguments on Nov. 10 on a lawsuit led by 18 red states that claim the ACA is unconstitutional. President Trump has promised to name a replacement for Ginsburg’s seat, but it remains unclear if that new justice is in place by the start of the court’s new term on Oct. 5.
A short-handed court could then hear the oral arguments and decide on the lawsuit in 2021, but a range of possibilities could happen.
Some experts warn the ACA could be in danger as there are now three justices appointed by Democratic presidents compared to 5 by Republicans.
“Among other things, the Affordable Care Act now dangles from a thread,” tweeted University of Michigan law professor and health law expert Nick Bagley on Friday after news of Ginsburg’s death was announced.
Chief Justice John Roberts has voted twice to uphold the ACA and could decide to do so again.
If he does, then the court would split 4-4 on the lawsuit, which charges that the individual mandate is unconstitutional and therefore the rest of the law must be struck down.
The Fifth Circuit Court of Appeals ruled in late 2019 that the individual mandate was unconstitutional but punted back to a lower court to decide whether the mandate can be severed from the rest of the law.
A collection of 20 blue states led by California appealed the ruling to the Supreme Court. The Department of Justice has sided with the red states in asking the court to strike down the law, even though the administration has not announced a replacement for the healthcare law.
A tie means that the appeals court ruling will stand, and therefore action will head back to the lower federal court on severability.
If the lower court makes a new ruling on severability then “those rulings would be appealed to the Fifth Circuit and then again to the Supreme Court,” said Rachel Sachs, associate professor of law for Washington University in St. Louis, Mo., and an expert in healthcare law.
You could see “multiple rounds of litigation if the court is tied,” she added.
But another conservative justice could side with Roberts and the court’s liberal wing to preserve the law.
Some experts point to Justice Brett Kavanaugh as a potential swing vote.
“It is possible to imagine Kavanaugh in light of some of his opinions voting to invalidate the law’s individual mandate but sever that provision from all or most of the law, leaving much of the ACA intact,” Sachs said.
Kavanaugh recently ruled during a case on whether robocalls can be made to cell phones that parts of a law can be severed from a provision of that law deemed unconstitutional.
That same principle would appear to apply to the ACA, where the red states led by Texas argue the rest of the law cannot survive.
“Even before Justice Ginsburg’s death, Justice Kavanaugh was thought to be a potential vote favor of upholding the ACA given his views on severability,” wrote Katie Keith, a principal at the consulting firm Keith Policy Solutions and former Georgetown law professor, during a blog published in Health Affairs.
Sachs said that the court could, however, decide to jettison other provisions of the law but keep others intact. For instance, pre-existing condition protections and funding for the individual market could go but the Medicaid expansion would remain.
“If you think about it, the Medicaid expansion is relatively independent from the operation of the individual mandate,” she said.