Can the ACA survive SCOTUS once again?
This piece first appeared in our weekly newsletter, The Fallout.
Late last week, the Supreme Court granted the Biden administration’s request to step into the fight over the Affordable Care Act’s (ACA’s) preventive care provisions and reverse a Fifth Circuit Court of Appeals decision that threatens coverage entirely.
Specifically, the Court will hear arguments in Becerra v. Braidwood Management, a case first brought by religious employers who object to coverage for pre-exposure prophylaxis (PrEP), the drug that prevents HIV transmission. The conservative justices will focus their attention on the ACA’s wildly popular preventive care mandate in this case. This question has no single answer. It would be like a concession to the repeal war if the Fifth Circuit’s decision was allowed to stand while the new Republican Congress promised to try to repeal the historic law. The case will force Chief Justice John Roberts, once again, to choose between upholding ACA and caving in to partisan attacks. Does Roberts’ past vote on Hobby Lobby mean that PrEP coverage is doomed? We’ll find out later in the year. The bad news is the Hobby Lobby case was decided and argued back when there was still a last guardrail on the Supreme Court. This changed with Donald Trump’s first term and the new justices that he appointed to the Court. Since then, the conservative majority is now embracing lawlessness, which is rewriting the Constitution and statutory precedents in line with conservative donors. Braidwood is another example of Roberts’ pivot. This case will be a true test of his legacy as chief Justice.
