The Upshot

THE NEW HEALTH CARE

Even With an Unfavorable Court Ruling, Much of Obamacare Would Live On

MARCH 4, 2015

Supporters of Obamacare rallied at the Supreme Court on Wednesday. CreditDoug Mills/The New York Times

Margot Sanger-Katz

The case before the Supreme Court this week will not wipe Obamacare off the books.

Unlike the case the court considered in 2012, which could have erased the Affordable Care Act entirely, this one concerns the application of only one provision of the law, and only to certain states. A ruling for the plaintiffs in the case, King v. Burwell, would carry huge consequences in many states, but 15 million of the people estimated to get insurance under the law would still get it, according to an Urban Institute estimate.

The list of policy changes that would be untouched by any legal ruling is very long. The law’s Medicaid expansion, now covering more than nine million poor Americans, will endure. Regulations on health insurance, limiting insurers’ ability to impose lifetime caps on coverage or exclude customers who have pre-existing illnesses, will remain. Young adults will still be able to stay on their parents’ insurance until they reach 26.

Major changes in the way Medicare pays doctors and hospitals, designed to make health care safer and more efficient, will continue. Workplaces will still need to provide places for lactating mothers to pump breast milk. Chain restaurants will still need to publish the calorie counts of their menu items. Drug companies will still need to report the money they pay to doctors.

A Reduction, Not an Erasure

If the Supreme Court rules to eliminate insurance subsidies in certain states, the number of uninsured Americans would rise. But it would still be lower than without the Affordable Care Act.

Taxes on wages and health insurance and medical devices will remain in place.

Even the law’s expansion of insurance coverage to the uninsured — the piece directly challenged by the lawsuit — will not completely evaporate. If the law’s challengers win in court, subsidies that help middle- income people buy insurance in as many as 37 states could disappear. The result, according to an Urban Institute estimate, is that about eight million fewer people would have health insurance in 2016 than would if the law remained untouched.

But that same model estimates that, even with a decision in favor of King, the law would still reduce the number of uninsured Americans by nearly 15 million people. And a large majority of Americans receive their health insurance from either an employer, Medicare or Medicaid — all systems that would experience little disruption from a court ruling.

That means that, even in the worst case for Obamacare, with a win for the King plaintiffs followed by no congressional, regulatory or state policy action, the law would still reduce the number of uninsured Americans by about two-thirds of what it would accomplish unchallenged.

Moreover, some policy changes could mitigate the impact of a decision for the plaintiffs. As my colleague Michael Shear has pointed out, although the Obama administration is promising no direct action in the aftermath of a ruling, it is likely that there are actions they would take to ease the transition for states that want to preserve their subsidies.

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And there is some early evidence that some states would try to set up their own insurance marketplaces, though it won’t be easy. Congress may act,too, though the politics of assembling a majority to vote for Obamacare reform in the House are likely to be difficult.

A ruling for the King plaintiffs would certainly reshape the future of the health reform law in important ways. Most significantly, it would widen an existing gap in health care access among the states — providing federal funding to cover low- and middle-income residents in some states while taxing residents of others and giving them little financial benefit.

But, hobbled though it would be, the Obamacare law would continue reshaping the American health care system — and providing health insurance coverage to millions of Americans who would otherwise be shut out.