Supreme Court likely to keep most of ObamaCare, based on justices comment on oral arguments

The high court is not expected to announce a decision until spring

Updated: November 10, 2020 - 4:04pm

The Supreme Court signaled Tuesday that it will likely keep in place most of the Affordable Care Act, during opening arguments in a case led by Republicans to dismantle the 2010 health care law. 

Among the key provisions that will likely stay are protection for pre-existing health conditions when buying medical insurance and the subsidized insurance premiums on which tens of millions of Americans rely. 

Chief Justice John Roberts and Justice Brett Kavanaugh – two of the six conservatives on the nine-member bench – appeared in two hours of arguments to be unwilling to strike down the entire law, even if they were to find the law’s now-toothless mandate for obtaining health insurance to be unconstitutional, according to the Associated Press.

The case was filed by Republican attorneys general in 18 states and the Trump administration and seeks to strike down the law, which covers an estimated 23 million people in the country, according to the Associated Press.

This is the high court's third major case related to the 2010 Affordable Care Act. Republicans have tried for years in the courts and in Congress to dismantle the law, informally known as Obamacare.  

California is leading a group of Democratic-controlled states that is urging the court to leave the law in place, the wire service also reports.

The court’s three liberal justices are almost certain to vote to uphold the law in its entirety and presumably would form a majority by joining a decision that cut away only the mandate, which now has no financial penalty, as a result of congressional action in 2017 left the rest of the law untouched.

A decision is expected by late spring.

“Would Congress want the rest of the law to survive if the unconstitutional provision were severed? Here, Congress left the rest of the law intact,” Roberts asked. “That seems to be a compelling answer to the question.”

Kavanaugh said recent decisions by the high court suggest “that the proper remedy would be to sever the mandate and leave the rest of the act in place.”

The court could have heard the case before the Nov. 3 election, but set arguments for a week after.

The case against dismantling the law is led by California, which is leading a group of other Democratic-controlled states and the Democratic-controlled House.

The three Trump appointees on the court – Kavanaugh, Neil Gorsuch and new Justice Amy Coney Barrett – have never ruled on the substance of the health care law.

However, Barrett has been critical of the court’s earlier major health care decisions sustaining the law, both written by Roberts, the wire service also reports.