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Paul Zimmerman
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ACA Survives a Second Legal Challenge

The Affordable Care Act is frequently referred to as ACA or Obamacare.

    • “ACA” is an acronym based on its initials.
    • Obamacare started out as a pejorative label coined by political rivals, but the President famously noted during a 2012 debate that he liked the name.

If it keeps fending off political and court-based challenges, the infamous Molly Brown may not be the only one known as “unsinkable.”

As most of you know by now, back in June, the Supreme Court issued its decision in King v. Burwell. The issue in this case involved the establishment of marketplaces known as “exchanges,” which were intended to be used by uninsured individuals to shop for their own health plan. Subsidies would be provided to individuals who shopped on the exchanges and purchased health insurance, based on their income. While a small number of states established their own exchanges, most states did not, which meant that the federal government would step in to run the exchange for that state. The statute’s language, however, created an issue, as it seemed to state that subsidies are available only to people buying insurance on “an exchange established by the state.”

In a 6-3 decision on June 25, the Supreme Court ruled that despite the “inartful drafting,” the subsidies were legal. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John G. Roberts Jr. wrote for the majority.

What does this decision mean?

For one, based on post-decision commentary, ACA will continue to come under attack, with legal efforts to challenge its status, and legislative efforts to repeal it, sure to continue.

More practically, observers have noted that a different ruling rejecting the subsidies could have created market chaos. A ruling rejecting subsidies in most of the nation would have left in place other parts of the law, including its guarantee of coverage regardless of pre-existing conditions, its requirement that most Americans obtain insurance or pay a penalty, and its expansion of Medicaid, all of which could have caused insurance rates to skyrocket. See “Supreme Court Allows Nationwide Healthcare Subsidies,” in the New York Times.

Jiggery-Pokery

Another result of the decision is the introduction of a new phrase to the English language, “interpretive jiggery-pokery,” which Justice Scalia coined in his dissent to describe the majority’s construction of the statute. The phrase sounds both ominous and fun, though its precise meaning is not entirely clear. 

Conclusion

Despite numerous challenges from well-funded opponents, it seems that ACA or Obamacare is here to stay. Whether the phrase “interpretive jiggery-pokery” has the same staying power, and whether it will be further defined, remains to be seen.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.