When Justice Ruth Bader Ginsburg passed, and Republicans scrambled to add yet another Donald Trump-endorsed conservative to the U.S. Supreme Court just eight days before Election Day, health care advocates were terrified for the future of the Affordable Care Act.
As of yesterday, their panic has subsided, at least a little.
A majority of the justices on the Supreme Court appeared likely Tuesday to spare the Affordable Care Act, better known as Obamacare, from a challenge by Republican-led states to strike it down. After two hours of oral arguments conducted by telephone conference call, the court seemed headed for a ruling that would say that even if part of the law is no longer valid, the rest of it can be left intact.
As we discussed after oral arguments, the right enjoys a 6-3 majority, but at least two conservatives seemed highly skeptical of the idea that the nation's entire health care system should be destroyed because of questions about a zeroed-out individual mandate.
"Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the law in place," Justice Brett Kavanaugh told Texas Solicitor General Kyle Hawkins (R). At another point, Chief Justice John Roberts told Hawkins that destroying the entire reform law, after Congress chose not to, is "not our job."
To be sure, it remains dangerous to predict rulings based on oral arguments. Justices routinely play devil's advocate and end up writing decisions that differ greatly from the questions they asked on the bench.
But let's say the latest assumptions are accurate and "Obamacare" will survive its latest brush with judicial death. At that point, we're likely to hear Republicans say, "See? Democrats were hysterical for no reason. We told you the court wouldn't tear down the ACA in its entirety."
This will badly miss the point of the controversy.
Ten years after the Affordable Care Act became the law of the land, and after literally dozens of GOP attempts to repeal and sabotage it, Republicans asked the Supreme Court to uproot their own country's health care system. In Texas v. California, GOP officials in Congress and the White House, pleaded with justices to create a nightmare scenario on purpose: millions of families would lose their health coverage; protections for Americans with pre-existing conditions would disappear; Medicaid expansion would cease to be; coverage for young adults on their parents' plans would disappear; many seniors would have to pay more for prescription medication; lifetime and annual caps would be re-imposed on families; and on and on.
When health care advocates noted how ridiculous it was to do this during a deadly pandemic, Republicans shrugged and pursued their preferred course anyway.
It now appears this effort will fall short, but that's not much of a defense for those who launched the indefensible effort in the first place.