This op-ed was originally published at The Huffington Post.
Some Supreme Court cases are really tough ones, with important, difficult, and complex legal questions about constitutional meaning or statutory interpretation, where justices have to choose between two powerful and compelling arguments. Sometimes the court is called upon to resolve an issue that has divided the circuit courts. Other times there is a lower court ruling so at odds with logic or precedent that it needs to be reviewed and corrected.
And then there's King v. Burwell, the Affordable Care Act subsidies case being argued this week.
Those challenging the law have an extremely weak legal case, there is no split in the lower courts, and there is no clearly wrong lower court ruling that needs to be corrected. This is a meritless case that was ginned up by conservatives seeking to enlist the Supreme Court in their political efforts to destroy the ACA. That at least four justices voted to hear the case is ominous enough. But a victory for the challengers would make it more clear than ever that political considerations are infecting a majority of the court.
Some background: Section 1311 of the ACA directs states to establish health insurance exchanges, creating competitive markets in every state for people to buy affordable insurance no matter where they live. But Congress also recognized that states might choose not do this, so Section 1321 says that in those cases the federal government should set up the exchange instead. The purpose of doing this was to ensure that even if states declined to set up an exchange pursuant to Section 1311, fully functional stand-ins would exist. This is essential to the structure of the law: The financial model relies on competitive markets with affordable insurance being available in every state.
To ensure affordability, the law also establishes subsidies for people below a certain income level to make sure they can buy insurance, which is necessary for the entire structure of the ACA to work. One subsection of the law establishes some key definitions, including an "eligible taxpayer" who is entitled to these subsidies, and the main criterion is income level. Try as you might, you won't find anything there saying that eligibility is at all tied to where someone lives.
A separate subsection says how to calculate the amount of the subsidy. Bizarrely, the conservative opponents of the ACA say that it is here that Congress chose to establish an enormously important additional eligibility criterion that, for some reason, they didn't put in the eligibility section: You have to live in a state that has set up its own exchange, rather than in one where the state has allowed the federal government to set it up instead.
This strange interpretation of the ACA depends on a deliberate misunderstanding of the subsidy provision's stating that the amount is based on the monthly premiums for a policy purchased through an exchange "established by the state under [section] 1311" of the ACA. But to interpret this provision the way the anti-Obamacare activists do, we'd have to deliberately blind ourselves to how it clearly fits with the ACA as a whole.
So we're supposed to pretend that Congress didn't specifically empower the federal government to set up fully functional stand-ins for state exchanges in states that declined to create them. And we're supposed to think that Congress hid a critically important criterion for subsidy eligibility in a section on calculating the subsidy amount. And we're supposed to accept that Congress intended to undercut the financial viability of the law and thwart its central purpose of providing affordable health care to all. As D.C. Circuit Judge Harry Edwards wrote, "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble."
No one could possibly believe that. You can't possibly look at the text of the Affordable Care Act and interpret it in the way that its enemies have conjured up.
And as journalists like Glenn Kessler have pointed out, congressional Republicans who today insist that Congress intended for subsidy eligibility to depend on what state you live in were saying nothing of the sort when the law was being debated. Their statements at the time show they assumed subsidies would be available nationwide.
It is also clear that state legislators -- regardless of party -- deciding whether to set up their own exchanges never contemplated the possibility that choosing to let the federal government do it would deny much-needed subsidies to people in their state. In fact, that point is made quite effectively in an amicus brief authored by the Constitutional Accountability Center on behalf of members of Congress and state legislatures.
When this nonsensical lawsuit was heard at the Fourth Circuit, it was rejected by a unanimous panel of judges. In his concurring opinion, Judge Andre Davis wrote:
What [the ACA opponents] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
Yet when the ACA opponents appealed to the Supreme Court, at least four justices (the minimum required to grant certiorari) agreed to hear the case.
It would be nice to believe that the only reason was to issue a 9-0 ruling slapping down this lawsuit and condemning those who would abuse the court system by seeking to enlist federal judges in their political fights. Unfortunately, this is the Roberts court, a court with a history of bending the rules, twisting the law, and doing whatever it takes to get to an outcome beneficial to conservative and corporate interests. With cases like Citizens United, Hobby Lobby, Ledbetter, Shelby County, and so many others, a narrow 5-4 majority has made opponents of the Affordable Care Act think they could gin up a meritless case and carry the day.
If the Roberts Court chooses to sabotage millions of Americans' access to health care, the consequences will be catastrophic for many everyday people, and possibly fatal to some. While there may be Americans who weren't paying attention to some of the wrongly decided cases noted above, it is hard to imagine any American missing this one -- and not knowing exactly who to blame.
Yesterday PFAW Foundation joined the National Women’s Law Center, the law firm Hogan Lovells, and close to 70 other organizations in submitting an amicus brief in King v. Burwell, the pending Supreme Court case on tax subsidies for the Affordable Care Act (ACA). The brief notes that a decision in favor of those challenging the subsidies would threaten a central goal of the law: making access to health insurance possible for millions of people across the country.
The ramifications of a wrong decision in this case could be enormous, causing serious harm in the lives of people now relying on health insurance through the ACA. If the core tax subsidy provision were to be struck down, the brief points out, women of color would be especially hard-hit:
These tax credits are critical. Over 9 million women, who would otherwise go without affordable health insurance, are eligible to benefit from them, including a disproportionate number of women of color.
…The tax credits are not only critical to women’s health; they are critical to the ACA’s continued viability. Congress encouraged participation in the insurance market primarily through the careful interrelation of the individual responsibility provision, market reforms, and tax-credit provisions. Eliminate the tax credits, and the system unravels.
The amicus brief highlights the stories of many real women who depend on the tax credits to access needed health care:
Marilyn Schramm, 63, is a 26-year cancer survivor from Austin, Texas. She endured treatment for cervical cancer in her thirties and has experienced life-long complications from that treatment that have required surgeries since then. Marilyn retired several years ago. When her COBRA rights were exhausted, Marilyn was forced to go without insurance for six months because of her “preexisting conditions.” But in January 2014, Marilyn could finally purchase insurance on the federally-facilitated Exchange in Texas, with at least half of her premium covered by the ACA’s tax credits.
Marilyn has now been diagnosed with colon cancer; following surgery, she began chemotherapy this month. Her coverage depends on the ACA’s prohibition on excluding those with pre-existing conditions, and on its premium tax credits: With her modest retirement income, Marilyn is unsure whether or how she could pay her insurance premium without the tax credits.
As we have noted before, this case is a blatantly political attack intended to do serious damage to the Affordable Care Act. The millions of women and men across the country who rely on the ACA in order to access health care ranging from preventative screenings to cancer treatments deserve far better.
Among the many court cases challenging contraception requirements under the Affordable Care Act, the case involving the Little Sisters of the Poor has been, and continues to be, a strange one. The latest wrinkle came on Friday in what SCOTUSblog’s Lyle Denniston calls a “partial win” for the order of nuns.
The Little Sisters, represented by the Becket Fund for Religious Liberty, appealed to the Supreme Court to prevent the group from having to sign a form documenting its religious objection to providing contraception coverage while its broader challenge to the law moves through the courts. The Tenth Circuit had rejected a similar request.
Under the Obama administration’s accommodation for religious groups, that form would exempt the organization from providing or paying for contraception coverage, and that responsibility would pass to the group’s insurer. In a brief to the Supreme Court, the Solicitor General’s office said that by Becket’s reasoning, a Quaker couldn’t be required to attest to his religious objections before being absolved of military obligations. But Becket insisted that the form acted as a “permission slip” that would trigger contraception coverage, and that would make the nuns complicit.
What makes this argument even stranger is the fact that the Little Sisters’ insurer is classified as a “church plan,” which is exempt from enforcement of the ACA requirement. So whether or not the Little Sisters signed the form, their lay employees would still not have access to coverage.
On Friday, the Supreme Court granted the Little Sisters’ request for an injunction, with a proviso. The group did not have to sign the government’s religious objection form, but it did have to notify the Department of Health and Human Services of its religious objections by letter. The Becket Fund declared victory and announced itself “delighted” by the Court’s compromise.
So, to recap: requiring a religious organization to sign a form opting out of providing contraception coverage is religious tyranny, but requiring a religious organization to send a letter to HHS stating its objections to providing contraception coverage is a victory for religious freedom.
Just wait until the Supreme Court hears the more far-reaching Hobby Lobby case, in which Becket and its client seek to establish the principle that for-profit companies can opt out of laws protecting their employees if those laws conflict with the religious beliefs of the corporation’s owners.
To celebrate the 93rd Anniversary Women’s Equality Day on Monday, People For members joined hundreds of progressive allies on the steps of the Wisconsin State Capitol in Madison for the “Stand With Wisconsin Women” Rally. The event opened with a song from the Solidarity Singalong participants, and featured Wisconsin women, activists, and legislators speaking out against the Wisconsin GOP’s war against women.
(Video credit: Scott Foval / PFAW.org)
“Thanks to the ACA, the Affordable Care Act, I will no longer pay co-pays for my birth control. As a woman I will no longer be charged simply for being a woman, and attempting to control my own reproductive life,” said Kristina Nailen. “I am still afraid. I am afraid that after these nine years of accumulating debt just for my bachelors, graduating this year with 83,000 in debt before interest, that I will be able to manage my own health care and make my loan repayments.”
Nailen called on Governor Walker and the Republican-controlled Wisconsin legislature to reverse their decision to cut the BadgerCare program, and immediately restore health care funding and provide access to more than 100,000 Wisconsin women who count on the program for their health care coverage.
The rally also featured a roster of activists, leaders, and legislators calling for equal pay for women, for paid family leave legislation, and endorsing the return of legislation promoting common sense, true equality, and fairness for all citizens; including working women, low wage workers, same-sex couples, disabled persons, and immigrants. Following the rally participants entered the Wisconsin capitol building to lobby Governor Walker and members of the Wisconsin legislature, demanding they refocus on creating well-paying jobs, and stop enacting anti-woman measures as distractions from economically-focused legislation.
Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.