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Key Justices Signal Support for Affordable Care Act

By Adam Liptak

Updated Nov. 13, 2020

WASHINGTON — At least five Supreme Court justices, including two members of its conservative majority, indicated on Tuesday that they would reject attempts by Republicans and the Trump administration to kill the Affordable Care Act.

It was not clear whether the court would strike down a provision of the act that initially required most Americans to obtain insurance or pay a penalty, a requirement that was rendered toothless in 2017 after Congress zeroed out the penalty. But the bulk of the sprawling 2010 health care law, President Barack Obama’s defining domestic legacy, appeared likely to survive its latest encounter with the court.

Both Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said striking down the so-called individual mandate did not require the rest of the law to be struck down as well.

“Congress left the rest of the law intact when it lowered the penalty to zero,” Chief Justice Roberts said.

Justice Kavanaugh made a similar point. “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place — the provisions regarding pre-existing conditions and the rest,” he said.

The court’s three-member liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — also indicated their support for the law. That suggested there were at least five votes to uphold almost all of it.

Three members of the court’s conservative majority, Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, seemed poised to vote to strike down the law. The court’s newest member, Justice Amy Coney Barrett, was harder to read, though she has been publicly critical of earlier rulings sustaining key provisions of the law.

Striking down the Affordable Care Act would expand the ranks of the uninsured in the United States by about 21.1 million people — a nearly 70 percent increase — according to new estimates from the Urban Institute.

The biggest loss of coverage would be among low-income adults who became eligible for Medicaid under the law after all but a dozen states expanded the program to include them. But millions of Americans would also lose private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

In the decade since the enactment of the health care law, Republicans have worked hard to destroy it, and President Trump has repeatedly criticized it. But attempts to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law has gained in popularity and been woven into the fabric of the health care system in ways big and small.

President-elect Joseph R. Biden Jr. vowed Tuesday to preserve and expand the law when he takes office on Jan. 20, and he assailed the arguments made in court by lawyers for Republican officials and the Trump administration.

Mr. Biden lashed out at what he called “far-right ideologues” in the administration who had asked the court to strike down the law, saying the impact of such a move for millions of Americans would be severe.

Campaigning for president, Mr. Biden said he wanted to strengthen the law by offering a public option that allows people to receive coverage the way Medicare enrollees do, through a system of government-run insurance. People who would prefer to stay on private insurance would be able to do so.

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