AUDIE CORNISH, HOST:
The fight over the Affordable Care Act that will play out at the Supreme Court tomorrow began more than a decade ago.
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BARACK OBAMA: Let's be the generation that says right here, right now, we will have universal health care in America by the end of the next president's first term. We can do that.
CORNISH: That was then-Senator Barack Obama on a frigid February 10, 2007, announcing his run for the White House. And it was that seed - the call for universal health care - that would become the year's long legal and political fight over the Affordable Care Act. But in that time, millions have gotten insurance through the law - people like Amanda Shelley (ph), who could not qualify for insurance because of a preexisting condition...
AMANDA SHELLEY: I was not one of the poor people that people think are signing up for Obamacare. I was - I'm one of the well-off people. On January 3, I started having some pain in my abdomen. And I tried to ignore it because I'm used to ignoring things because I didn't have insurance. And two days later, I had my gallbladder out urgently.
CORNISH: ...Or Brad Stevens (ph) in Lakeport, Calif.
BRAD STEVENS: I have been uninsured for most of my - let's see - adult life. I've always tried to take care of myself and be healthy, exercise and eat right. And boom. I ended up with cancer, thyroid cancer.
CORNISH: Stevens qualified for Medicaid when California expanded its rules under the law. Now, not everything with the ACA has gone smoothly. There was the shaky rollout, an initial increase in premiums. But the biggest threat to its viability has always been the concerted and repeated efforts by Republicans to undermine it, a cause that then-candidate Donald Trump took up when he first ran in 2016.
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PRESIDENT DONALD TRUMP: We're going to repeal and replace Obamacare. It is a total disaster. We're repealing and replacing Obamacare. It's gone.
CORNISH: Trump and the GOP in Congress have yet to succeed in fulfilling that campaign promise, even though House Republicans voted several dozen times to overturn the law. Most of those were symbolic since few were ever taken up in the Senate. But the legislative effort to scrap the bill came close in the early hours of July 27, 2017.
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UNIDENTIFIED REPORTER: Republican Senator John McCain was the one who cast the deciding vote that defeated the Republicans' latest attempt to dismantle Obamacare. Hours after...
CORNISH: Now, as things are about to change in Washington, it will be the nine justices of the Supreme Court who will decide if the ACA survives this latest challenge. Joining us now is Erin Fuse Brown. She's the director of the Center for Law, Health and Society at Georgia State College of Law.
Welcome to ALL THINGS CONSIDERED.
ERIN FUSE BROWN: Hi, Audie.
CORNISH: To begin, what is at stake tomorrow?
FUSE BROWN: So the stakes couldn't be higher. The entire health care system was affected by the Affordable Care Act, and the entire Affordable Care Act is being argued in the court tomorrow. And so, in some ways, you know, the entire health care system is waiting to see what will happen because millions of people could lose coverage, and the entire health care system could be altered fundamentally if the court rules against the Affordable Care Act.
CORNISH: I want to explore this idea of severability because this is at the heart of the case brought by the state of Texas. They argue that since Congress cut a part of the law, the individual mandate, the rest of the law needs to be invalidated. Can you talk about what kind of support that argument has?
FUSE BROWN: Legal experts from both sides of the political spectrum have argued that this is a very, very weak argument because the presumption in most instances is that even if one part of a law is considered to be unconstitutional, the court is going to interpret it to preserve as much of the law as possible because that was what Congress would have wanted. And here, the idea is, can we separate the individual mandate - if it turns out to be unconstitutional - from the rest of this sprawling 1,000-page Affordable Care Act?
CORNISH: There's some irony here because I remember covering Congress when the law was passed, and that actually was the argument from Democrats. Without the individual mandate, the whole thing doesn't work.
FUSE BROWN: The individual mandate was considered very critical in the beginning. The thing that we've been surprised to find is that the individual mandate isn't exactly necessary. Since 2019, we actually haven't had a functioning individual mandate.
CORNISH: Because people can't pay the penalty even if they wanted to, right? Like, you can't actually be financially penalized for not having insurance anymore.
FUSE BROWN: Correct. So it's an entirely toothless mandate. It's unenforceable. And people are still buying insurance. And so what we found is that the individual mandate is not necessary to the entire statute for the - all of the insurance provisions to work.
CORNISH: As you've described, it's your belief that this argument around severability isn't going to work, that it's weak. What happens if this law is struck down? Give us the what if.
FUSE BROWN: So the what if - even if, you know, this is a legally weak argument, we are here at the Supreme Court. So there is a possibility, albeit small, that the Supreme Court could strike down the entire law. And if that happens, then utter chaos will follow. If the entire law is struck down, I think one of the biggest immediate implications is that over 21 million people are going to lose their health insurance.
CORNISH: Why is that? Is the idea that all the insurers would just say, you know what; we've been making a ton of profit on this, but now we don't have to do it anymore, so good luck, everyone?
FUSE BROWN: These are the people who actually gained coverage under the Affordable Care Act. So if you are someone who shops for insurance on healthcare.gov and gets subsidies - valuable, you know, payments to help make that coverage affordable - all of that subsidy would go away. Healthcare.gov would disappear. The products themselves may not be there anymore. So all of those people would lose coverage. In addition, the Affordable Care Act also expanded Medicaid. Medicaid's covered a lot, many, many millions of people. And so about 12 million people would lose their Medicaid coverage if the Affordable Care Act were to be struck down in its entirety.
CORNISH: How would this affect people, though, who don't use the exchanges or get the subsidies? I mean, what would that mean to, I guess, the private market?
FUSE BROWN: If you have employer-based coverage, one of the big things that the Affordable Care Act did was to make it illegal for these plans to limit annual or lifetime benefits. And so for people who have employer-based or private insurance coverage, this is really an important protection. If you have cancer, if you have a chronic illness, if you have really expensive health needs, then this is a huge protection.
CORNISH: We've been here before, as you've said. I mean, also, we've been looking at 2012, when the court kept the law intact. Congress has since kind of whittled away at it even though they've never made it to a full repeal. Do you think that this is the end of this conversation?
FUSE BROWN: No, I don't think this is the end of the conversation. I think, in some ways, you know, Congress still has a huge role to play. And the fact that Congress has been chipping away at the Affordable Care Act doesn't mean the Affordable Care Act has been eliminated. In fact, the only thing Congress was able to successfully eliminate was this penalty for the individual mandate. And so what we're seeing is that the Affordable Care Act remains alive and well. And this is just another sort of legal strategy to take it down because the legislative means have failed.
And one of the things that this could open up, though, is for future Congress - a future congressional fix. And so if the Supreme Court, for example, were to decide that this is - the individual mandate is not severable or that the parts of the act have to be struck down, then it's really in Congress's hands at that point to fix it.
CORNISH: Erin Fuse Brown is an associate professor of law at Georgia State University.
Thank you for explaining this to us.
FUSE BROWN: Thank you.
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