Online Extra: ACA's return to Supreme Court concerns LGBT groups

by Lisa Keen

The U.S. Supreme Court announced that it would hear another challenge to the Affordable Care Act.
The U.S. Supreme Court announced that it would hear another challenge to the Affordable Care Act.  

The Affordable Care Act is about to go under the microscope again at the U.S. Supreme Court, and this time, the composition of the court is much more conservative than it was during the previous two inspections.

The law has enabled an estimated 20 million people to obtain health insurance and provides subsidies to make coverage affordable for people with low incomes. The law requires everyone either buy health insurance coverage or pay a "tax" that helps offset their use of the medical system without insurance. (Congress has since reduced that tax to $0.) Regulations implementing the ACA include significant prohibitions on discrimination against people based on sexual orientation and gender identity and based on preexisting conditions.

On Monday, March 2, the high court said it would review the decision of a lower court that held that mandated tax to be unconstitutional and, therefore, renders the entire law unconstitutional.

The ACA prohibits insurance companies from putting a cap on how much coverage a person — with HIV, breast cancer, or any other disease — can have during his or her lifetime. It also prohibits insurance companies from dropping a person from coverage once a person becomes ill. (Before the ACA was enacted in 2010, 30% of people with HIV had no insurance.) And it prevents companies from excluding certain conditions for coverage.

Omar Gonzalez-Pagan, senior attorney and health care strategist at Lambda Legal Defense and Education Fund, said the LGBT legal organization is "concerned about the continuous attacks against the Affordable Care Act."

"The ACA has saved millions of lives. It is of critical importance for LGBTQ people, people living HIV, and people of color. The ACA has improved access to care and eliminated structural, discriminatory barriers for many, particularly people living with HIV," said Gonzalez-Pagan. "We are hopeful the Supreme Court will once again uphold the ACA and look forward to making that case to the court."

Another LGBT legal expert pointed out ramifications for transgender people.

"If the Supreme Court strikes down the ACA, it will be catastrophic for transgender people who live in red states and who will be abruptly stripped of any health care protections," said Shannon Minter, legal director for the National Center for Lesbian Rights. "The ACA's prohibition of discrimination against transgender people in health care led to a sea change in access to medical necessary care for the transgender community. Because of the ACA, transgender people went from having no health care protections in most states to having nationwide protection. To lose that safety net would be devastating and would put many transgender people at high risk of losing access to transition-related care."

Jennifer Levi, director of the Transgender Rights Project of GLBTQ Legal Advocates & Defenders, said the non-discrimination provision in the ACA is "an important source of protections for LGBTQ people who face disproportionately high rates of discrimination in health care."

"The law has also prodded many employers and insurance providers to fill specific gaps in coverage for transgender people's health care needs," said Levi. "Any risk to its grounding is worrisome. There are strong legal arguments in support of the ACA, as the Supreme Court has already said. And Americans strongly favor it. But this court has grown dramatically conservative so any time it takes a case impacting LGBTQ people there is cause for concern."

According to a Kaiser Family Foundation, a survey in February showed 55% of Americans view the ACA favorably.

The Supreme Court has heard challenges to the ACA on two other occasions. In 2012, it heard HHS v. Florida, which sought to strike down ACA by stripping its mandate that all individuals buy insurance or pay a tax to help defray health care costs. The court upheld the law on a 5-4 vote. Writing for the dissent, then-Justice Anthony Kennedy said he believed ACA was unconstitutional.

Two years later, in Hobby Lobby v. Burwell, the court ruled that the ACA's requirement that employer insurance include coverage for contraception was unconstitutional. But it limited the ruling to employers in family-owned businesses who expressed religious objections. Again, the vote was 5-4.

The ACA, a signature piece of legislation sought by the administration of President Barack Obama, was an attempt to ensure that every American had access to health care by making it more affordable. In setting this up, the law included several mandates:

- insurers could not refuse coverage to people with preexisting conditions;
- insurers were required to cover preventative care for women;
- insurers had to allow young adults to stay on their parents' insurance until age 26; and
- individuals had to maintain a "minimum essential" level of health insurance coverage or pay a "tax" to cover their "shared responsibility" of the cost of any health care they might require.

The Supreme Court upheld the mandated "shared responsibility" tax, but in 2017, Congress set its minimum at $0.

At that rate, the shared responsibility tax cannot generate the funds envisioned to help defray the costs of providing health care to the uninsured.

Opponents of the ACA went to court to argue that the tax on uninsured people was an inseverable part of the ACA and that setting the tax at $0 rendered the entire law unconstitutional. The 5th U.S. Circuit Court of Appeals agreed.

A group of 19 states are challenging that 5th Circuit's ruling. They are led by California and include New York, Illinois, Virginia, Massachusetts, Connecticut, Delaware, Hawaii, Minnesota, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Washington, Colorado, Iowa, Michigan, Nevada, and the governor of Kentucky. They are joined by the U.S. House of Representatives.

The two lawsuits, Texas v. California and California v. Texas, have now been consolidated into Texas v. California and will likely be argued this fall, during the 2020-21 session.

Supporting the 5th Circuit decision — and hoping to gut the ACA — are a similar number of states, mostly Southern, including Texas, Florida, and Georgia. Several departments in the Trump administration, such as the Department of Health and Human Services, are lined up with them.

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