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Death of Supreme Court Justice Ruth Bader Ginsburg could have ramifications for Affordable Care Act

A new conservative appointee could be the deciding vote in the constitutionality of the ACA.

Susan Morse, Managing Editor

Photo by Chip Somodevilla/Getty ImagesPhoto by Chip Somodevilla/Getty Images

The death of Supreme Court Justice Ruth Bader Ginsburg on Friday and her replacement has ramifications for healthcare, particularly for the Affordable Care Act.

The Justices are scheduled to hear the ACA case, California v. Texas, a week after the November 3 presidential election. The legal battle pits Republican-controlled states against the attorneys general of 20 Democratic states over the legality of the ACA, now that the mandate for individuals to buy health insurance is gone. 

Payers and providers have voiced support for the ACA.

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Republicans, led by Senate Majority Leader Mitch McConnell, could push through a vote for a new Justice prior to the November 3 presidential election, if they have the votes to do so. Republicans have a 53-47 majority in the Senate. They can lose three votes and still win appointment for their nominee with Vice President Mike Pence as the tie-breaking vote.

At least two Senators are seen as potential roadblocks to a GOP victory. Senator Susan Collins of Maine, who is facing a tough reelection race and Senator Lisa Murkowski of Alaska, have said they oppose moving forward on a vote prior to the election. Senator Mitt Romney of Utah and Cory Gardner of Colorado are also viewed as undecideds.

Democratic nominee Joe Biden opposes the push "to jam this nomination through the Senate," he has said. Democrats point out that in 2016, when President Barack Obama nominated Judge Merrick Garland to fill the seat left vacant by the death of Antonin Scalia, Republicans blocked a vote, saying the confirmation should not happen prior to the presidential election.


Health issues that could be decided by a conservative shift on SCOTUS include the potential to overturn Roe V. Wade, which has protected a woman's right to choose since 1973.

In the immediate future, is a hearing on the Affordable Care Act scheduled for November 10.

Having a ninth justice confirmed in that short a time would be unusual. If the justices vote on the case and it's a 4-4 tie, they could push out a decision until a ninth justice is confirmed. A tie vote would leave the most recent decision by the lower court in place.

The ACA case before the Supreme Court centers on the now defunct mandate for individuals to buy health insurance or face a tax penalty. Without this penalty, the ACA is invalid, argue Texas and other Republican-led states, which won their case in the district court in Texas. An appeals court sent the case back to the district court.

The GOP argument is based on a decision by the Supreme Court eight years ago. In 2012, the Supreme Court ruled that the ACA was valid due to Congress's ability to apply a tax penalty to individuals who did not get insurance coverage. Congress does have the power to tax, SCOTUS said. But it does not have the power to force people to buy health insurance.

The vote in 2012 was 5-4.

Chief Justice John Roberts wrote the majority opinion, and was joined by Justices Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan, according to CNN. All, except for Roberts, were nominated by a Democratic president.

Those in the dissent included Justices Anthony Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas, who were all appointed by Republican presidents.

Kennedy is retired; Scalia died in 2016; and Ginsburg died on Friday.

Current justices appointed by a Republican president are Roberts, Thomas, Alito, Gorsuch and Kavanaugh.

Current justices appointed by a Democratic president are Breyer, Sotomayor and Kagan.

This 5-3 split is viewed as being more 4-4, since Roberts, in 2012, did not follow party lines with his vote.

A new conservative appointee could very well be the deciding vote in the constitutionality of the ACA.


An estimated 20 million people are insured under the ACA. Millions more receive coverage under Medicaid in those states that expanded Medicaid.

Insurance coverage means less uncompensated care for providers.

Health insurers have invested in the market, with many expanding their footprint.

Twitter: @SusanJMorse
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