Washington D.C., Nov 10, 2020 / 01:00 pm (CNA).- The Supreme Court heard oral arguments on Tuesday in the latest legal challenge to the Affordable Care Act. How the court might decide the case was a crucial part of Democratic opposition to the confirmation of Amy Coney Barrett to the court last month.

In the cases of California v. Texas and Texas v. California, the court will consider whether the law should be struck down if its “individual mandate” was effectively nullified by Congress in 2017.

In 2012, Chief Justice John Roberts authored the majority opinion that upheld the constitutionality of the law’s individual mandate. The Court ruled that the mandate’s penalty for non-compliance was a tax, and thus a lawful requirement of Congress to make on Americans.

The mandate that every American have a health insurance plan—or face a financial penalty—was seen as critical to the law’s implementation and guarantee of affordable health coverage for all.

Republicans in Congress reduced the penalty for not complying with the mandate to zero, but they still kept in place the statutory language of the mandate.

The state of Texas challenged the mandate in Court, arguing that the mandate was nullified by Congress and is “inseverable” from the rest of the law which should thus be struck down in its entirety.

The case is one of the first to be heard with newly-confirmed Justice Amy Coney Barrett on the bench.

Democratic senators made a series of emotionally charged accusations during Barrett’s confirmation hearings, insisting that she would take a role in striking down the Affordable Care Act and that a court with Barrett admitted as a justice would pose a risk to the health of vulnerable Americans. Despite these predictions, the justices appeared skeptical during the hearing.

Barrett on Tuesday asked Michael Mongan, California’s Solicitor General who argued in favor of keeping the law intact, if individuals could still claim “injury” by the law without a financial penalty, if the government were to track their purchase of health care.

She also asked Kyle Hawkins, Solicitor General of Texas, which government entity would cause an “injury” to someone bringing a lawsuit

Roberts and other justices also showed skepticism that Texas had a legitimate case against the ACA.

Roberts and Kavanaugh questioned whether the mandate, even if struck down, was “inseverable” from the rest of the law.

Congress in 2017 did not try to repeal the rest of the law while reducing its penalty, Roberts noted, only zeroing out the penalty.

Supreme Court precedent on “severability,” Kavanaugh said, is “fairly clear” and Congress did not use that same language in crafting the law to make the individual mandate “inseverable.”

Justice Clarence Thomas, meanwhile, questioned whether Texas even had an injury to bring in its lawsuit.

“I think we’re shadowboxing a bit here,” he told Kyle Hawkins, the Solicitor General for Texas. Thomas asked what the injury was to the state if the fine as an enforcement mechanism for the individual mandate was zero.

The law was left in place by Congress and is still “functioning perfectly well,” argued Mongan.

Without a penalty for non-compliance, the ACA “still presents a choice” that is constitutional, he said, a choice of “either buy insurance, or do nothing.”

There have been other legal challenges to the ACA or to the Obama administration’s enforcement of it—including the court case of the Little Sisters of the Poor against the HHS contraceptive mandate.

The ACA had required coverage of preventive services in health plans, and the Obama administration interpreted this to include all FDA-approved contraceptives, including Plan B emergency contraceptives which can cause early abortions.

When the administration crafted an “accommodation” for non-profits with moral objections to the mandate many of them still sued; they argued that the process offered by the administration to comply with the rule still forced them to essentially give the government a “permission slip” to provide contraceptive coverage in employee health plans.

The U.S. bishops’ conference (USCCB) supported many of the law’s goals, including expansion of health coverage for the uninsured, but ultimately opposed its enactment in 2010. The USCCB warned that the law would set up taxpayer funding streams for abortion coverage and did not include sufficient health coverage for immigrants.

However, the Catholic Health Association (CHA) strongly supported the law despite the objections of the U.S. bishops. The CHA filed an amicus brief at the Supreme Court in the new case, saying that the law “has made strides” towards increasing affordable health coverage for millions of Americans and decreasing the burden on hospital emergency rooms of caring for the uninsured.

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