MONEY Obamacare

Everything You Need to Know About the Latest Challenge to Obamacare

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Robert A. Di Ieso, Jr.

Next week the Supreme Court will hear arguments in a case that could have a huge impact on millions of consumers. Here's what it's all about.

The Affordable Care Act is once again before the Supreme Court.

On March 4, the justices will hear oral arguments in King v. Burwell, a case challenging the validity of tax subsidies helping millions of Americans buy health insurance if they don’t get it through an employer or the government. If the court rules against the Obama administration, those subsidies could be cut off for everyone in the three dozen states using healthcare.gov, the federal exchange website. A decision is expected by the end of June.

Here are five things you should know about the case and its potential consequences:

1. This case does NOT challenge the constitutionality of the health law.

The Supreme Court has already found the Affordable Care Act is constitutional. That was settled in 2012’s NFIB v. Sebelius.

At issue in this case is a line in the law stipulating that subsidies are available to those who sign up for coverage “through an exchange established by the state.” In issuing regulations to implement the subsidies in 2012, however, the IRS said that subsidies would also be available to those enrolling through the federal health insurance exchange. The agency noted Congress had never discussed limiting the subsidies to state-run exchanges and that making subsidies available to all “is consistent with the language, purpose and structure” of the law as a whole.

Last summer, the U.S. Court of Appeals for the Fourth Circuit in Richmond ruled that the regulations were a permissible interpretation of the law. While the three-judge panel agreed that the language in the law is “ambiguous,” they relied on so-called “Chevron deference,” a legal principle that takes its name from a 1984 Supreme Court ruling that held that courts must defer to a federal agency’s interpretation as long as that interpretation is not unreasonable.

Those challenging the law, however, insist that Congress intended to limit the subsidies to state exchanges. “As an inducement to state officials, the Act authorizes tax credits and subsidies for certain households that purchase health insurance through an Exchange, but restricts those entitlements to Exchanges created by states,” wrote Michael Cannon and Jonathan Adler, two of the fiercest critics of the IRS interpretation, in an article in the Health Matrix: Journal of Law-Medicine.

In any case, a ruling in favor of the challengers would affect only the subsidies available in the states using the federal exchange. Those in the 13 states operating their own exchanges would be unaffected. The rest of the health law, including its expansion of Medicaid and requirements for coverage of those with pre-existing conditions, would remain in effect.

2. If the court rules against the Obama administration, millions of people could be forced to give up their insurance.

A study by the Urban Institute found that if subsidies in the federal health exchange are disallowed, 9.3 million people could lose $28.8 billion of federal help paying for their insurance in just the first year. Since many of those people would not be able to afford insurance without government help, the number of uninsured could rise by 8.2 million people.

A separate study from the Urban Institute looked at those in danger of losing their coverage and found that most are low and moderate-income white, working adults who live in the South.

3. A ruling against the Obama administration could have other effects, too.

Experts say disallowing the subsidies in the federal exchange states could destabilize the entire individual insurance market, not just the exchanges in those states. Anticipating that only those most likely to need medical services will hold onto their plans, insurers would likely increase premiums for everyone in the state who buys their own insurance, no matter where they buy it from.

“If subsidies [in the federal exchange] are eliminated, premiums would increase by about 47%,” said Christine Eibner of the RAND Corporation, who co-authored a study projecting a 70% drop in enrollment.

Eliminating tax subsidies for individuals would also impact the law’s requirement that most larger employers provide health insurance. That’s because the penalty for not providing coverage only kicks in if a worker goes to the state health exchange and receives a subsidy. If there are no subsidies, there are also no employer penalties.

4. Consumers could lose subsidies almost immediately.

Supreme Court decisions generally take effect 25 days after they are issued. That could mean that subsidies would stop flowing as soon as July or August, assuming a decision in late June. Insurers can’t drop people for non-payment of their premiums for 90 days, although they have to continue to pay claims only for the first 30.

Although the law’s requirement that individuals have health insurance would remain in effect, no one is required to purchase coverage if the lowest-priced plan in their area costs more than 8% of their income. So without the subsidies, and with projected premium increases, many if not most people would become exempt.

5. Congress could make the entire issue go away by passing a one-page bill. But it won’t.

All Congress would have to do to restore the subsidies is pass a bill striking the line about subsidies being available through exchanges “established by the state.” But given how many Republicans oppose the law, leaders have already said they will not act to fix it. Republicans are still working to come up with a contingency plan should the ruling go against the subsidies. Even that will be difficult given their continuing ideological divides over health care.

States could solve the problem by setting up their own exchanges, but that is a lengthy and complicated process and in most cases requires the consent of state legislatures. And the Obama administration has no power to step in and fix things either, Health and Human Services Secretary Sylvia Burwell said in a letter to members of Congress.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

TIME politics

How a Little-Known Supreme Court Case Got Women the Right to Vote

Vote
MPI / Getty Images A poster, published by the League of Women Voters, urging women to use the vote which the 19th amendment gave them, from circa 1920

Happy birthday, Leser v. Garnett

Pop quiz: when did women in the United States get the right to vote?

If you answered June 4, 1919, or Aug. 18, 1920 — the dates on which the 19th Amendment was passed and ratified — then you’re almost right. Yes, the Amendment guaranteed that the right to vote could not be denied on account of sex. But the right wasn’t fully secured until this day, Feb. 27, in 1922. That’s when the Supreme Court decided Leser v. Garnett.

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

The Supreme Court found that both arguments flopped: when suffrage had been granted to all male citizens regardless of race the Amendment had held up, despite the change to the electorate, and the ratification powers Leser questioned had in fact been granted by the Constitution. (And in a few states where things were iffy, it didn’t matter because enough other states had ratified.)

So, while the 19th Amendment granted women the right to vote, Leser made sure that the right could actually be used, even where the state constitution said otherwise. It’s not one of the more famous Supreme Court decisions in American history, but without it the electorate would be, well, lesser.

TIME Health Care

Supreme Court Says Dentists Can’t Decide Who Gets to Whiten Your Teeth

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Getty Images

The Supreme Court has ruled that dentists can't hold a monopoly on teeth-whitening services

Dentists cannot have a monopoly on teeth whitening services, the Supreme Court ruled on Wednesday.

The Supreme Court found that the North Carolina State Board of Dental Examiners was wrong when it sent “cease and desist” letters to companies that were offering teeth whitening at strip malls and kiosks. The board held that it was regulating the practice, but it was sued by the Federal Trade Commission (FTC) for creating an advantage for its members and blocking competition.

The Supreme Court ruled 6-3 in favor of the FTC, agreeing that the board was acting on behalf of private members and not as a state regulatory agency since it was not being actively monitored by the state.

North Carolina law does not specify whether teeth whitening is a practice only allowed by dentists. The smaller businesses were offering the procedures for a lower costs than the dentists.

TIME Supreme Court

See Ruth Bader Ginsburg Grow from Toddler to Supreme Court Justice

The Supreme Court Justice's life in photos, from camp rabbi to Cornell student, all the way to her appointment to the nation's highest court

TIME Supreme Court

Ruth Bader Ginsburg Upends the Notion of the Silent Justice

Ruth Bader Ginsburg Supreme Court Justice Young Photos
Steve Petteway—Collection of the Supreme Court of the United States Official portrait of Justice Ruth Bader Ginsburg

Supreme Court Justice isn't just writing opinions, she's sharing them in interviews.

Ruth Bader Ginsburg appears to be on a book tour with no book. The oldest Supreme Court Justice has been on a media tear recently, making headlines with interviews about everything from feminism to her workout routine, even slyly revealing that she was “not 100 percent sober” during the State of the Union.

In the last year, Ginsburg has given interviews to Elle, the Associated Press, the National Journal, The New Republic, Yahoo! News, Bloomberg and MSNBC. She’s done a live event at the 92nd Street Y, performed a monologue in a D.C. play about the Civil War and given her blessing to the Notorious RBG Tumblr page, a fan website in her honor. Only Ginsburg’s opera-buddy Antonin Scalia, who gave a much-discussed 2013 interview to New York magazine, and Sonia Sotomayor, who made the rounds promoting her memoir, come close to rivaling Ginsburg’s recent publicity tour.

Some longtime court watchers think Ginsburg and her colleagues may be reshaping the way the traditionally cloistered justices interact with the public.

“That is a lot, and the frequency of it breaks the pattern,” says Lyle Denniston, a contributor to SCOTUSblog who has been covering the courts for 57 years. “This is a much more open age, with the Internet, and the justices are simply players in the modern drama of greater public exposure. It is pattern-setting, and it is unusual.”

Like many things at the Supreme Court, there may be an unspoken political angle too.

Leading up to the 2012 and 2014 elections, some liberals had argued that Ginsburg should retire, given her age (at 81, she’s the oldest sitting Justice), her history with pancreatic cancer and the possibility that Republicans could retake the White House and/or the Senate.

“If Ginsburg and Breyer abjure retirement and Obama wins, the justices’ subsequent departures will be relatively harmless,” wrote Harvard Law professor Randall Kennedy in the New Republic in 2011. “On the other hand, if Obama loses, they will have contributed to a disaster.”

A brief visit to the hospital over Thanksgiving renewed those fears for liberal court-watchers, giving Ginsburg all the more reason to dispel any concerns about her health. In all her interviews, she’s noted that she’s not going anywhere anytime soon.

“I’ve said many times: once I sense that I am slipping, I will step down,” she told MSNBC earlier this week. “This is a very intense job. It’s the best and the hardest job I’ve ever had. It takes a lot of energy and staying power to do it right. I will step down when I feel I can no longer do the job full steam.”

Ginsburg’s interviews have touched on some other common themes. She discusses what it was like to be one of few women in law school, to have no job offers after graduating at the top of her class at Columbia Law and how her egalitarian relationship with her husband Martin Ginsburg shaped her career. She recalls her time working for the ACLU, fighting laws that discriminated against women. She notes that while Roe v. Wade is unlikely to be overturned, restrictions on abortion rights affect poor women far more than affluent ones. And, inevitably, she calls on the generation of young American women to avoid complacency.

One thing that concerns me is that today’s young women don’t seem to care that we have a fundamental instrument of government that makes no express statement about the equal citizenship stature of men and women,” she told The New Republic last year. “They know there are no closed doors anymore, and they may take for granted the rights that they have.”

Not everyone agrees that Ginsburg’s increased public exposure is a good thing, especially when Ginsburg discussed the upcoming gay marriage case, sparking calls from some conservatives for her to recuse herself.

“Justices are generally more cautious than Justice Ginsburg has been lately in discussing pending issues,” says Denniston. “If they were discussing a tax case or a labor case, nobody would notice, but if you’re discussing the most controversial issues, people do pay very close attention. And they do take offense when a member of the court seems to be forecasting where the court’s going to go.”

But Ginsburg seems secure in her decision to speak out about her opinions, whether in a written dissent or not. She told MSNBC that she’d like to be remembered as “someone who used whatever talents she had to do her work to the very best of her ability and to help repair tears in her society.”

For this Supreme Court Justice, that means more than just writing opinions in a quiet legal chamber. It also means getting out there before the public. And that decision may end up as much a part of her legacy as any of her legal ones.

Read next: Oregon’s Kate Brown Becomes First Openly Bisexual U.S. Governor

Listen to the most important stories of the day.

Correction: An earlier version of this story misstated the number of years that Lyle Denniston has covered courts.

TIME Supreme Court

Justice Ginsburg Admits She Was Tipsy at State of the Union

She blamed her televised nap on wine

Supreme Court Justice Ruth Bader Ginsburg admitted in a panel discussion that a nice California wine was the reason she nodded off during the State of the Union address.

“We sit there, stone-faced, the sober judges, but we’re not — at least I wasn’t — 100% sober, because before we went to the State of the Union we had dinner together, and I vowed this year, ‘Just sparkling water, stay away from the wine!’ But in the end, the dinner was so delicious it needed wine to accompany it.”

Supreme Court Justices: they’re just like us!

[CNN]

TIME Courts

Supreme Court Justice Says Americans Ready to Accept Gay Marriage

"The change in people’s attitudes on that issue has been enormous,” Ruth Bader Ginsburg said

Supreme Court Justice Ruth Bader Ginsburg doesn’t think there would be widespread backlash if the high court decides to legalize same-sex marriage across the country this year.

“I think it’s doubtful that it wouldn’t be accepted,” Ginsburg said in an interview with Bloomberg. “The change in people’s attitudes on that issue has been enormous.”

About 72% of Americans live in the 37 states and Washington, D.C., where gay and lesbian couples are free to marry, and soon the Supreme Court will hear oral arguments that will decide whether that freedom carries over to the rest of the U.S.

“I think that as more and more people came out and said ‘This is who I am,’ the rest of us recognized that they are one of us,” Ginsburg said. “We discovered it’s our next-door neighbor; we’re very fond of them. Or it’s our child’s best friend or even our child.”

[Bloomberg]

 

TIME Courts

Justice Thomas Says Supreme Court Has Signaled Support for Gay Marriage

The decision not to take up Alabama's ruling in favor of gay marriage speaks volumes, the conservative Justice writes

Correction appended Feb. 12

Justice Clarence Thomas criticized the Supreme Court’s decision not to postpone the start of same-sex marriages in Alabama Monday, in a dissent that suggested his colleagues had already made up their mind on gay marriage ahead of a ruling later this term.

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas wrote in his dissent to a decision not to review a lower court ruling in favor of same-sex marriage. “This is not the proper way to discharge our [constitutional] responsibilities. And, it is indecorous for this Court to pretend that it is.”

Read More: Why the Supreme Court is Set to Make History on Gay Marriage

U.S. District Judge Callie Granade struck down Alabama’s ban of same-sex marriage in January, but stayed implementation of the decision so it could be appealed to the Supreme Court. On Sunday, the justices declined to hear an appeal by a vote of 7-2 and, by default, allowed same-sex marriage to begin there. Thomas was joined in his dissent by Justice Antonin Scalia.

The Supreme Court will hear challenges to same-sex marriage bans in four states in the coming months and is expected to issue a ruling by the end of June. The decision will likely apply to all 50 states.

Correction: The original version of this article misstated the Supreme Court Justice who joined Clarence Thomas in his dissent. It was Antonin Scalia.

TIME Laws

Alabama’s ‘Ten Commandments Judge’ Defies the Feds Over Gay Marriage

Roy Moore
Rogelio V. Solis—AP Chief Justice Roy Moore of the Alabama Supreme Court addresses a Pro-Life Mississippi and a Pastors for Life pastors luncheon in Jackson, Miss., Friday, Jan. 17, 2014. Moore told the attendees that he cannot separate his faith from his job as chief justice and continues to oppose abortion and same-sex marriage.

Roy Moore has a history of defying federal orders

On Sunday, Alabama Supreme Court Chief Justice Roy Moore told the state’s probate judges not to issue marriage licenses to gay couples, an order defying a ruling last month by a federal judge that the state’s ban on same-sex marriage was unconstitutional.

A state judge refusing to follow federal orders is rare. But for Moore, it would’ve been more unusual if he went along with the decision quietly.

Judge Moore is often known as the “Ten Commandments Judge.” When Moore, a devout Christian who often relies on Biblical scripture in his rulings, began his judicial career as an Alabama circuit court judge in the 1990s, he placed a Ten Commandments tablet he had carved himself behind his courtroom bench and began instituting prayer before jury selection.

Soon enough, the American Civil Liberties Union sued Moore for violating the Constitution’s Establishment Clause in the First Amendment. In 1996, a Montgomery County circuit judge ruled that prayer in the courtroom was unconstitutional and later ordered that the Ten Commandments display either be removed or placed alongside secular documents like the Bill of Rights and the Constitution. To that, Moore responded: “I will not surround the Ten Commandments with other items to secularize them. That’s putting man above God.”

But Moore eventually won out. In 1998, the Alabama Supreme Court dismissed the lawsuits, and the commandments stayed. And Moore’s popularity, thanks to his conservative defiance, skyrocketed. Two years later, he was elected chief justice of the Alabama Supreme Court.

In 2001, Moore again made national news when he issued an opinion in the case D.H. vs. H.H., a custody battle between a lesbian and her ex-husband who she said was abusive. In his concurring opinion, Judge Moore ruled for the ex-husband, saying that the woman’s sexual orientation was grounds enough to prevent her from taking custody of the children.

A year later, Moore resurrected the Ten Commandments debate when he had a 5,200-lb. granite Ten Commandments monument commissioned and placed inside the Alabama State Judicial Building. Two lawsuits were filed, and by August 2003, a federal judge ordered the monument removed. Again, Moore refused, forcing his fellow justices to remove it instead and sparking thousands of protesters to rally in support of Moore outside the state judicial building. But they weren’t able to save his job. Later that year, a state judicial panel removed Moore from his post as chief justice.

In the years following, Moore unsuccessfully ran for Alabama governor twice and in 2012 was re-elected chief justice of Alabama’s Supreme Court. “I have no doubt this is a vindication,” Moore said after his election. “Go home with the knowledge that we are going to stand for the acknowledgment of God.”

Moore’s latest tenure has been relatively quiet until this week. His latest attempts to ignore federal orders and block the state from handing out marriage licenses to gay couples, while extraordinary for other justices, is natural for a judge with a history of judicial defiance. But this time, Moore appears to be experiencing the kind of resistance he’s sown for years.

On Monday, the U.S. Supreme Court announced that it would allow same-sex marriages to move forward, and most judges appeared to be following suit — defying a state judge who has made judicial disobedience his defining characteristic.

 

TIME Laws

How Canada’s Right-to-Die Ruling Could Boost Movement in U.S.

Lee Carter embraces her husband Hollis Johnson while speaking to journalists at the Supreme Court of Canada in Ottawa on Feb. 6, 2015.
Chris Wattie—Reuters Lee Carter embraces her husband Hollis Johnson while speaking to journalists at the Supreme Court of Canada in Ottawa on Feb. 6, 2015.

Advocates say Supreme Court ruling could give momentum to U.S. states considering so-called 'death with dignity' bills

The Canadian Supreme Court issued a unanimous decision Friday that will allow physicians to provide life-ending medication to terminally ill patients.

The court ruled in part that banning a right to die in fact “deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”

The groundbreaking 9-0 decision, which makes Canada one of just a handful of states to allow some form of “aid in dying,” comes as states in the U.S. consider allowing the practice for mentally competent patients with terminal illness. So-called death with dignity advocates said Friday that the decision by the U.S.’s northern neighbor could increase momentum across the border.

MORE: Death is Not Only for the Dying

“I think it will have a significant impact in the U.S.,” says Barbara Coombs-Lee, president of Compassion & Choices, a death with dignity advocacy group. “This isn’t happening in a far-off country. It sends a strong message throughout the continent.”

The “aid in dying” movements in Canada and the U.S. have similar histories. Both began around the late 1980s and early 1990s, and both have tried to achieve policy reforms through the courts and at the state or provincial level. But Friday’s Canadian court decision, which allows the practice nationwide, is a significant breakthrough for death with dignity advocates in Canada. It remains an unlikely scenario in the U.S., however, where reforms will likely come at a state level.

Peg Sandeen, executive director of the Death With Dignity National Center in the U.S., says she believes the court’s decision “will have a tremendous positive effect on a state-by-state level,” but that policy changes will continue to happen outside of Washington. The issue hasn’t gained much traction in Congress, and the Supreme Court isn’t likely to take up the issue anytime soon.

MORE: Why a Young Woman With Brain Cancer Moved to Oregon to Die

But there is considerable progress at the state level.

End-of-life practices are legal in Montana, New Mexico, Oregon, Washington and Vermont, while legislation has been introduced in California, Colorado, Iowa, Pennsylvania and Wyoming, plus the District of Columbia. Coombs-Lee says it’s being considered in some form in 25 states.

The movement began making significant strides thanks to the widely publicized story of Brittany Maynard, a 29-year-old newlywed with brain cancer who moved from California to Oregon, which is just one of five states that allow terminally ill patients to obtain life-ending medication.

One state that aid-in-dying advocates are currently watching closely is New York, where terminally ill patients recently filed a lawsuit that would allow the practice. State lawmakers are also reportedly considering introducing a death with dignity bill. But any sort of movement in U.S. federal courts like what happened in Canada will likely only occur once there’s more progress at the state level.

“I think a federal constitutional protection could be acknowledged at some point,” says Coombs-Lee, “but only after there is already a critical mass of states where it is already authorized.”

The Canadian decision struck down laws that banned doctors from participating in ending a patient’s life and reversed an earlier Supreme Court ruling, saying that current bans violated rights of life, liberty and security as protected by the country’s Charter of Rights and Freedoms. Last year, Quebec passed right-to-die legislation, making it the only Canadian province to allow the practice.

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