Once again, the future of the Affordable Care Act (ACA) may be in the hands of the Supreme Court.
In 2012, the court said that the bill’s individual mandate was constitutional, dashing the hopes of fiscal and social conservatives alike who hoped that the law would be sunk before it was implemented.
Now, it is Democrats who are on the edge of their seat, as the Court considers whether subsidies — including those that cover abortions — for 36 states are legal. If the subsidies are eliminated, the entire law's financial structure could be destroyed.
The final decision will hinge on whether the law's subsidies were written into the law, or are being interpreted by politicians and bureaucrats. The challenge to the law says that the way the state subsidies are written into the ACA only allow subsidies for those people who purchase insurance through a state-created health exchange. In the 36 states that forced the federal government to create their exchanges, this argument means that those people would pay the full cost of health insurance under the ACA.
According to the language of the law, subsidies shall be offered in exchanges “established by the state.”
The law's supporters argue that Congress intended the subsidies to not be limited by who organized the exchanges. Thus, courts should declare the funding as constitutional.
The Court's acceptance of the case is unusual because only the 4th Circuit has ruled on the issue, in July of this year. Normally, the Court waits for a split among federal appeals courts — which could have happened next month, when the full D.C. Court of Appeals was set to hear an appeal from the Obama administration.
However, the D.C. Court cancelled the hearing, in light of the Supreme Court's decision to review the case. A three-judge panel of the D.C. Court had previously ruled against the Obama administration on the same day as the 4th Circuit ruling, but that decision was vacated when the December appeal was scheduled.
If the Court rules against the Obama administration, it would drastically diminish the ability of the ACA to pay for abortions. Earlier this year, a government watchdog agency found that over 1,000 ACA plans illegally fund abortions by directly covering abortions instead of providing a rider on top of a health insurance plan.
Abortion has dogged the ACA's path since day one. The bill’s passage was almost prevented in 2010 because many pro-life Democrats believed it would fund non-elective abortions. While President Obama's Executive Order gave the Democrats cover to support the legislation, the Order was almost immediately ignored as the administration tried to fund non-elective abortions in several states, including Pennsylvania.
The Supreme Court will hear the case early next year, and issue a decision by the summer.