Capitol Correspondence - 10.20.20

Big Picture: How the Supreme Court’s Makeup Could Change Health Care Beyond the Affordable Care Act

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Because the well-being of people with disabilities is often tied to broader health policies beyond the scope of disability programs, ANCOR is sharing reporting by Politico Pro on health policies upon which the Court is expected to decide, possibly as soon as this fall. While the Politico Pro article below does not delve into the potential fate of the Affordable Care Act, we also link here to an Axios article on how a conservative court might not overturn the ACA for the convenience of members interested in the discussion surrounding protections for pre-existing conditions.

“Across three days of hearings, senators reviewing Amy Coney Barrett’s nomination to the Supreme Court sparred extensively over Obamacare’s future. Left largely unmentioned, though, is the many ways the court’s buttressed 6-3 conservative majority could steer America’s health care system to the right even if Obamacare survives its looming legal showdown.

On tap for the justices to consider are rules to require people on Medicaid to work or lose their benefits, skimpier insurance alternatives for Obamacare that the Trump administration has championed, and cuts to federal funding for Planned Parenthood clinics.


Democrats during this week’s hearings have sought clues on how Barret would approach abortion cases and the Trump-backed lawsuit against Obamacare. Much to Democrats’ frustration, she provided few indications of how she might rule, though she acknowledged how a legal doctrine could save Obamacare from its latest challenge.

Meanwhile, much of Trump’s broader health agenda remains at stake in the courts, as do new controversies that may arise during the coronavirus pandemic. Just this week, health experts in JAMA looked at whether coronavirus vaccine distribution plans that prioritize vulnerable minority populations hard hit by the virus could face legal challenges.


A solidly conservative bench may be more likely to preserve an appeals court ruling that upheld Trump’s expansion of short-term health plans, which are cheaper than Obamacare coverage because they typically exclude the law’s protections, including those for preexisting conditions. A similar challenge involving another Obamacare alternative known as association health plans is still winding through lower courts. Republican-appointed judges who’ve reviewed those cases have rejected challengers’ claims that the health plans are invalid because they undermine Obamacare.


The court could also soon take up Trump’s “public charge” rule that would make it more challenging for legal immigrants to get green cards if they use public benefits like Medicaid. The Supreme Court earlier this year allowed the rule to take effect while ongoing challenges played out in lower courts, but the administration has asked the court to rule on the merits of the policy. [ANCOR note: we opposed this rule because of its potential effect on immigrants with disabilities and their families.]

Barrett would have to recuse herself from Supreme Court review of public charge, since she previously ruled in the administration’s favor in a lawsuit she heard at the 7th Circuit Court of Appeals. In her ruling, which was opposed by the appellate panel’s two other judges, Barrett said the courts weren’t the appropriate venue to settle what she said amounted to a policy dispute.

There’s no guarantee of which cases the Supreme Court might accept, but conservatives’ strong majority will give them a major advantage in setting the court’s docket.

Still, lower court decisions will factor into their decisions about which cases to take up. Medicaid work rules, the Trump administration’s signature effort to shrink enrollment in the low-income health care program, have been rejected by two lower courts. Those decisions found approvals of the work rules were “arbitrary and capricious” and didn’t adequately consider how many people might lose coverage because of them. This could make the administration’s challenge to those rulings less attractive to the Supreme Court, although the justices usually give more deference to executive branch requests to review cases. About 20 states, predominately Republican-led, have received or sought the Trump administration’s permission to enact work rules for some enrollees. [ANCOR note: we have expressed concern to the Administration about how work requirements could negatively impact individuals with disabilities and the Direct Support Professionals who support them due.]

Conservative legal experts pointed out that the court’s conservatives might look unfavorably on some health care policies the Trump administration has advanced. Some of these, like an overhaul of Medicare payments to discourage hospital consolidation and rules forcing hospitals to disclose negotiated insurance rates, have bipartisan appeal but test the bounds of executive power to force change through regulation. An administration policy requiring drugmakers to include prices in television ads has already been rebuked by two federal courts who said the health department lacked the power to do so.”