Today, the Supreme Court will hear oral arguments in California v. Texas, another legal case that threatens to end the Affordable Care Act (ACA).
The ACA requires most people to have minimum essential health insurance coverage or they have to pay a penalty; this is known as the individual mandate. In a different legal challenge to the ACA in 2012, the Supreme Court ruled that the mandate is constitutional under Congress’ taxation authority. But in 2017, Congress passed a law that set the penalty at $0. A group of 18 states, led by Texas and supported by the Trump administration, argued that because the individual mandate is now at zero, it is no longer a tax and therefore unconstitutional.
Despite being an extremely weak legal argument, a Trump-appointed judge and a Bush-appointed judge in a divided Fifth Circuit panel agreed. They also went one step further and argued that because the individual mandate portion of the ACA is invalid, the entire ACA is now invalid.
The case is now in front of the Supreme Court, which will answer both the question of whether the individual mandate is constitutional and if it’s severable from the rest of ACA. If not, the entire law and its protections could disappear, leaving more than 20 million people without health insurance. The court’s decision will likely come down in the spring or summer of 2021 but it’s already clear that losing the ACA would be devastating for the Asian American and Pacific Islander (AAPI) community by making health care more expensive and more difficult for us to access.
In parts of the country, AAPIs account for a high and disproportionate number of COVID-19 cases and deaths. In the short term, the ACA helps ensure that we can get testing and treatment for COVID-19. In the long term, those who have been infected with the virus may be considered by insurers to have a new pre-existing condition. In a time of unprecedented unemployment and financial hardship among the AAPI community, the ACA offers individuals ways to keep health coverage through expanded eligibility for Medicaid and the premium tax credits that help moderate-income people afford individual market health insurance.
Health coverage and care are critical for every family — especially in the middle of a pandemic — but Trump’s justices on the Supreme Court don’t appear to agree. Two weeks ago, the Senate rushed to confirm Trump’s third Supreme Court nominee, Amy Coney Barrett, who is on the record opposing the ACA.
Before she was a Supreme Court justice, Barrett criticized the ACA’s requirement that employer-sponsored health insurance plans cover birth control and condemned Chief Justice John Roberts’ decision to uphold parts of the ACA. She wasn’t given her seat on the Supreme Court in spite of these opinions — Trump chose her to help him gut our access to health care. He has created a supermajority on the court of justices who are opposed to our values and priorities.
Over the course of Trump’s term, the Senate has confirmed more than 200 of his judicial nominations, packing the federal courts with judges chosen for their extreme ideology and who are oftentimes severely inexperienced. Before her confirmation, Barrett had never argued a case, argued an appeal, or argued in front of the Supreme Court and never served as a judge until 2017. Trump inherited 103 judicial vacancies to fill largely thanks to Senator Mitch McConnell effectively shutting down confirmations in 2015–16 under President Obama.
Right now, the courts are not upholding the hard won rights that we have fought for, nor are they a neutral arbiter. We’re done waiting for devastating decisions to come down that take away our ability to make decisions about the formation of our families, provide for our loved ones, and to even exist in this country without fear. We need judges that recognize and protect communities of color, immigrants, pregnant people, workers, voters, and more.
The National Asian Pacific American Women’s Forum is calling for an expansion of the courts, including the Supreme Court, to remedy and boldly restructure our judicial system so that it serves all of America, not just a select few. If we don’t, the ongoing attacks on our rights and our communities will be ongoing without check and it is the most vulnerable who will pay the price.