Comments made today during oral arguments to overturn the Affordable Care Act (also known as Obamacare) suggest conservative members of the Supreme Court may favor maintaining it even if a core provision of the legislation is invalidated.
The current case to dismantle Obamacare centers on eliminating the individual mandate, a key part of the legislation designed to penalize Americans who forgo health insurance.
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In 2012, the Supreme Court ruled the Affordable Care Act (ACA) was legal because of Congress' ability to levy taxes and the inclusion of the individual mandate provision. But the GOP-led Congress reduced the penalty associated with the individual mandate to $0 in 2017, casting doubt on the taxing authority argument.
Although conservative justices appear to support the argument that the individual mandate is no longer valid, they appear to be leaving room for the ACA to remain, potentially benefiting healthcare companies participating in the program, including Anthem and Centene.
During oral arguments, John Roberts, a George W. Bush appointee, said, "I think it's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down."
Separately, Brett Kavanaugh, a Donald Trump appointee, told those arguing for Obamacare, "I tend to agree with you" that precedent suggests "we would excise the mandate and leave the rest of the act in place."
Those comments imply Roberts and Kavanaugh favor eliminating the mandate while also keeping Obamacare otherwise intact. If so, odds favor the Supreme Court maintaining access to insurance through the existing ACA marketplace or the law's Medicaid expansion provisions. A Supreme Court decision in the case isn't expected until next summer, though, so the outcome's impact on health insurers and participants remains uncertain.
