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The Supreme Court could strike down Obamacare. Here’s what’s at stake.

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NC DHHS Secretary Dr. Mandy Cohen: “We need to focus on expanding access to affordable care, not restricting it.” (Photo: DHHS livestream screenshot)

WASHINGTON— The fate of the sweeping 2010 health care law known as Obamacare is again in limbo, with the U.S. Supreme Court on Tuesday scheduled to hear arguments over whether the statute should be overturned.

States are at the heart of the case; nearly every one has made an argument about why the Affordable Care Act, as it’s officially titled, should be kept or struck down. If the court agrees to upend the law, health care experts predict the consequences would be substantial. More than 21 million Americans could lose their health insurance, and those who do have insurance coverage would have fewer guarantees as to what health care expenses would be covered.

The Affordable Care Act survived a 2012 challenge at the top court, which upheld the law’s mandate that most Americans must purchase health insurance or pay a penalty. A 5-4 majority, in which Chief Justice John Roberts joined the court’s liberal wing, found that the penalty was a tax that Congress was allowed to impose. But Congress changed the law in 2017, setting that penalty at zero. Republican state officials now trying to strike down Obamacare in California v. Texas argue that without the penalty, there’s no tax, making the mandate and the rest of the law invalid.

More than a dozen Democratic states banded together to defend the law, after the federal government declined to do so.

Here’s what is at stake:

Which states are involved in the lawsuit?

Most states have picked a side in the case, according to the Kaiser Family Foundation [2], a nonprofit focused on national health issues. Texas is the lead state challenging the ACA, along with two self-employed residents of Texas, and 17 other Republican-led states. (Two others, Wisconsin and Maine, had initially joined the case but withdrew last year.)

Sixteen states, including North Carolina [3], as well as the District of Columbia, were permitted to intervene in the case and defend Obamacare. Four more states — Nevada, Colorado, Iowa, and Michigan — joined when it was appealed, and six have filed amicus briefs in support of the law.

NC Attorney General Josh Stein released a statement this morning [3] advocating for the ACA: “Health care is a matter of life and death – even more so during a devastating global pandemic that has lasted nearly a year and infected more than 290,000 North Carolinians. The Affordable Care Act is central to guaranteeing the health care that so many North Carolinians need.

“Eliminating the ACA threatens North Carolinians’ ability to get affordable and accessible health care. The ACA is vital for the more than 500,000 North Carolinians who gained health insurance through the Exchange, the more than 4 million North Carolinians with pre-existing conditions who are protected from discrimination, the 1.8 million North Carolina seniors who save on their medication, the 70,000 young North Carolinians who can stay covered on their parents’ insurance, and the more than 400,000 working families in North Carolina who receive subsidies to help them afford their insurance.”

What are the legal questions in the case?

The states and residents challenging the law first must prove they’ve been harmed by the law, giving them what is called “standing” to sue.

The other arguments focus on the constitutionality of the mandate to buy insurance coverage, and if that provision can be severed from the rest of the law. If the justices determine it cannot be separated, then overturning the insurance mandate would require upending the entire law.

What happens if the law is overturned?

An estimate from the Urban Institute and Robert Wood Johnson Foundation [4] projected that 21.1 million Americans would lose insurance coverage if the health care law is undone. That would be a 69% increase in those who are uninsured.

The largest increases would be in states that saw the largest coverage gains under Obamacare. That would include those that expanded eligibility for Medicaid, the government’s health insurance program for low-income people, the elderly and people with disabilities, as well as states that had high uninsured rates prior to the law.

Maine, Kentucky, West Virginia, Montana, Michigan and Pennsylvania would be among states seeing the largest spikes in people without insurance, according to the Urban Institute analysis.

States that did not expand Medicaid, such as Florida, North Carolina, Georgia and Wisconsin, would see large increases in the number of uninsured, due to ending the subsidies for purchasing coverage on Obamacare insurance exchanges and eliminating other provisions of the law.

NC Department of Health and Human Services Secretary Dr. Mandy K. Cohen joined Stein in supporting the ACA: “We need to focus on expanding access to affordable care, not restricting it. We do not want to go back to a time where more people can’t afford preventive care, can’t afford to manage chronic conditions, and can’t get health coverage because they have a pre-existing condition. Not only do we need to protect the Affordable Care Act, in our state we need to fully take advantage of it and give hard-working North Carolinians access to affordable care by expanding Medicaid.”

Attorney General Stein said in his prepared statement that in addition to the “millions of North Carolinians for whom the ACA is critical, North Carolina hospitals could also lose $22.7 billion over the next 10 years and North Carolina physicians could lose $8.7 billion. Uncompensated care costs in North Carolina would increase by a startling $35 billion over this period, forcing everyone’s health insurance premiums to increase.”

What about people with pre-existing conditions?

The 2010 health care law also was groundbreaking in ensuring that Americans with pre-existing conditions would no longer be denied insurance coverage. Ending that law would mean those with health conditions could again struggle to access coverage or could be charged high costs for those health benefits.

That protection has taken on even greater significance amid the coronavirus pandemic, with more than 10 million Americans having contracted COVID-19. Little data is available on the long-term health consequences.

Since 2019, at least 18 states have passed laws to protect those with pre-existing conditions from being denied coverage, or to ensure that health insurance offered includes the same core benefits required under the ACA, according to Avalere, a health care consulting firm. Those states include Florida, Louisiana, Maryland, Maine, Nevada and Virginia.

How has the court changed since the 2012 Obamacare ruling?

The Supreme Court has grown more conservative since the last time the health care law was challenged there. With the confirmation of Amy Coney Barrett last month, there are six conservative justices and three liberals.

The Affordable Care Act case was a major theme of the opposition to Barrett’s confirmation. Democrats highlighted popular provisions of that law, and sought to pin down Barrett on whether she would vote to undo it. Barrett said she is “not hostile” to that law [5], but avoided offering any specific statements on how she would vote.

[6]Laura Olson covers the nation’s capital as a senior reporter for States Newsroom, a network of nonprofit outlets that includes NC Policy Watch.