Health Care in the Hands of the Court

Two and a half years ago, the Supreme Court upheld the Affordable Care Act by a single vote. This year alone, between 8 million and 11 million Americans have been able to get health insurance that they did not have before, according to a new analysis by The Times.

But this remarkable success has endured relentless attacks by the law's dogged opponents, who will not stop until they have destroyed it. They lost in their efforts to gut the law in 2012. They could get another chance as early as Monday. That is when the justices are expected to announce whether they have agreed to hear the latest challenge, which takes aim at four words - 'established by the State' - buried deep within the 900-page law.

The passage at issue relates to the tax-credit subsidies that make the purchase of health insurance affordable to millions of Americans and are essential to the structure of health reform. The plaintiffs claim that these subsidies are available only on health-care exchanges 'established by the State.' That means, they argue, that there can be no subsidies given to anyone living in the 36 states where the federal government established a health exchange after state officials did not. Right now, more than four million people in those states receive the subsidies; by 2016, that number is estimated to rise to 7.3 million, with subsidies totaling $36.1 billion.

Most federal judges who have considered this claim have tossed it out, and for good reason: It directly contradicts Congress's explicit purpose in passing the law to make affordable health care widely available.

Nor, in all the months of legislative debate over this law did anyone in Congress suggest that the subsidies were dependent on who established the exchange. Even politicians who now support the lawsuit never raised this issue. For example, in explaining why Nebraska was declining to set up an exchange in 2012, Gov. Dave Heineman, a Republican, said, 'There is no real operational difference between a federal exchange and a state exchange.'

That this lawsuit is based on a technicality does not change the fact that a Supreme Court ruling invalidating subsidies for people using federally run health exchanges would be disastrous. According to a report published last month by the RAND Corporation, it would cause young and healthy people to drop their coverage in those states, resulting in higher premiums for the people left in the insurance pools and a 'near 'death spiral' ' that would cripple those insurance markets.

Of course, Congress could change the statutory wording to appease those who insist on misreading the law. But there is no chance of that happening in the current political climate.

In the end, the provision of health insurance for millions of people may well come down to the states themselves. And that's not a comforting thought.

For one thing, there's disagreement over what counts as a 'state-established' exchange, where there are differing degrees of federal involvement. At the least, it would require legislation or an executive order by the governor. This could be a significant hurdle, particularly in states where the health reform law is so detested that officials are prohibited by law from having anything to do with its implementation.

The justices could still choose not to hear the case at all, or they could accept it and rule against the law's opponents. But even in those states that refuse to take responsibility for health care reform, the Affordable Care Act has already improved the lives of millions of lower-income Americans who have rarely, if ever, known the security of health insurance.