Op-Ed: Another conservative attack on Obamacare, another loss at the Supreme Court

The Supreme Court building in Washington
For the Supreme Court’s opinion on the Affordable Care Act, Justice Stephen G. Breyer said that Texas and the other states had no standing to sue because they suffered no harm from Congress eliminating the penalty for not purchasing insurance.
(J. Scott Applewhite / Associated Press )

The Supreme Court’s decision on Thursday to uphold the Patient Protection and Affordable Care Act breaks no new legal ground, but it has enormous practical significance in that it means that 21 million people will keep their health insurance coverage.

In 2012, in National Federation of Independent Business vs. Sebelius, the court in a 5-4 decision upheld the constitutionality of the Affordable Care Act, also known as Obamacare. One of the key issues before the court was the constitutionality of the individual mandate, the requirement that people purchase insurance or pay a penalty. The court, in an opinion by Chief Justice John G. Roberts Jr., held that the individual mandate was a valid exercise of Congress’ power to impose a tax for the general welfare.

The Affordable Care Act imposed many new restrictions on insurance companies to protect consumers: It prevented denial of insurance coverage because of preexisting conditions; it stopped insurance companies from charging more in premiums to those with chronic conditions; it eliminated caps on yearly or lifetime benefits. The individual mandate was crucial for these reforms because otherwise people would wait to purchase insurance until they were sick. That would not be viable because health insurance works only if healthy people are among those insured.


In December 2017, as part of the tax reform bill, Congress eliminated the penalty for individuals not purchasing health insurance. Texas and several other states, as well as some individuals, brought a new lawsuit arguing that this action makes the Affordable Care Act unconstitutional. They argued that the individual mandate had been upheld as a tax, but no longer could be characterized in that manner because Congress had eliminated the penalty for failing to purchase health insurance. The challengers argued that this made the entire act unconstitutional. The Trump administration agreed and urged the federal court to strike down the entire statute. California and other “blue” states intervened to defend the law.

The lower federal courts agreed with Texas and the challengers that the individual mandate no longer could be upheld as a constitutional exercise of the taxing power, but said there was still the question of whether that made the whole statute invalid. Before those courts could address that issue, the Supreme Court granted review.

The stakes in the case could not be higher. We are in the midst of the worst public health crisis in over a century and more than 20 million people receive health insurance through the Affordable Care Act. Undoubtedly, the justices were cognizant of this when they heard the case.

On Thursday, the court left the act in place. The majority opinion by Justice Breyer said that Texas and the other states had no standing to sue because they suffered no harm from Congress eliminating the penalty for not purchasing insurance. Likewise, the individual plaintiffs incurred no harm because there is no longer any penalty for not purchasing health insurance.

This all seems so obvious that one wonders why it even got to this stage. It is crucial to remember that everything about the Affordable Care Act has been deeply partisan. Every Republican in Congress voted against it. Four conservative justices would have struck down the entire law in 2012. At the time, Justice Amy Coney Barrett, who was then a conservative law professor, was outspoken in criticizing the court’s upholding the law. Texas and other “red” states and the Trump administration saw this as their chance to finally kill the law. And conservative judges in the lower courts agreed with them.

Let’s hope Thursday’s decision ends the legal challenges to the Affordable Care Act. Although it has not fulfilled all of its promise, it has been a huge success. Unfortunately, in 2012, the court struck down the requirement in the ACA that every state increase the scope of its Medicaid program. Many states with Republican legislatures and Republican governors then refused to do so, leaving tens of millions of Americans without insurance.


Even though fewer people are covered than was initially intended, the ACA has made a huge difference in so many people’s lives. The court’s latest Obamacare ruling will maintain health insurance for millions who would otherwise be left out in the cold.

Congress has voted over and over not to repeal or even rework the 2010 Affordable Care Act. It’s time for Republicans to stop their mindless lawsuits.

June 17, 2021

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. He is the author of a forthcoming book, “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”