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Supreme Court to hear challenge to Obamacare: ‘With Ginsburg gone, it might succeed,’ legal expert says

But Biden administration will have leeway to uphold some aspects of the ACA, says health care expert

The U.S. Supreme Court tomorrow will hear oral argument in California v. Texas, which could abolish the Affordable Care Act. The Court previously upheld the law in 2012 and 2015, but President Trump has appointed three justices since then. In a recent op-ed, Northwestern Pritzker School of Law Professor Andrew Koppelman said the real danger lies in newly confirmed justice Amy Coney Barrett’s “general willingness to entertain lousy legal arguments for anti-Obamacare results.”

In addition to Koppelman, Elena Prager and Amanda Starc of the Kellogg School of Management are also available for comment.

Andrew Koppelman, the John Paul Stevens Professor of Law, can speak to the Affordable Care Act case before the Supreme Court. He is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020); “The Tough Luck Constitution and the Assault on Health Care Reform” (Oxford University Press, 2013); and “Defending American Religious Neutrality” (Harvard University Press, 2013). He can be reached at akoppelman@law.northwestern.edu.

Wrote Koppelman in a recent op-ed

“Commentary has focused on the immediate danger to Obamacare. In the age of COVID-19, that’s obviously an urgent concern. But notice what it reveals more generally about the court — and Barrett. Evidently no claim against a key piece of Democratic legislation is too dumb for the conservatives to take it seriously. 

“If this challenge fails, perhaps a fourth suit will be filed, claiming that Obamacare is unconstitutional because it is icky and has cooties. A Republican-appointed district judge will refuse to dismiss it as frivolous, conservative commentators will devise ingenious rationalizations for it, a court of appeals panel of Trump-appointed judges will solemnly affirm it and Obamacare will once more be before the Supreme Court.” 

Elena Prager is an associate professor of strategy at the Kellogg School of Management at Northwestern. She is an applied microeconomist with research interests at the intersection of industrial organization and health economics. Her work uses empirical analyses of large, detailed datasets to answer policy-relevant questions about strategic behavior among health insurers and health care providers. In recent research, she has examined provider network formation and the effect of merger and acquisition activity on workers. To arrange an interview, contact Abby Daniel at abby.daniel@kellogg.northwestern.edu.

Quote from Professor Prager
“One thing that’s likely to get lost in the coverage is that a Biden administration will have leeway to uphold — without relying on Congress or the courts — some aspects of the ACA that were rolled back by the Trump administration. Notably, the list of services that are classified as ‘essential’ and must, therefore, be covered by all insurers is set by the executive branch. This includes various types of preventive care, including the partisan issue of coverage of contraceptive methods.”

Amanda Starc is an associate professor of strategy at Kellogg and a faculty research fellow at the National Bureau of Economic Research (NBER). Her research interests include industrial organization and health economics. Starc’s research examines the Medicare Advantage, Medicare Part D, and Medicare Supplement (“Medigap”) markets, as well as consumer behavior in insurance exchanges. To arrange an interview, contact Abby Daniel at abby.daniel@kellogg.northwestern.edu.

Quote from Professor Starc
“It is hard to imagine the health care system in the absent of various features of the ACA, many of which work together. Importantly, the ACA is working effectively even without an effective mandate.”