How Supreme Court's conservative majority could remake American health care

(Politico) - The court will soon weigh cases that could shrink Medicaid or undermine Obamacare's marketplaces if the health care law survives.

How Supreme Court's conservative majority could remake American health care

Across four days of hearings, senators reviewing Amy Coney Barrett’s nomination to the Supreme Court sparred extensively over Obamacare’s future. Left largely unmentioned, though, is the many ways the court’s buttressed 6-3 conservative majority could quickly steer America’s health care system to the right even if Obamacare survives its looming legal showdown.

On tap for the justices to consider are rules to require people on Medicaid to work or lose their benefits, skimpier insurance alternatives for Obamacare that the Trump administration has championed, and cuts to federal funding for Planned Parenthood clinics.

Barrett appears on track to join the Supreme Court by its Nov. 10 hearing on the Affordable Care Act and before it weighs whether to take up a raft of health care cases that advance conservatives’ goals of paring the health care safety net. While the court’s ideological wings don't always vote as monolithic blocs, Barrett would represent another reliably conservative vote for the court – and it takes just four justices to agree to hear a case.

“Regardless of where you think the chief justice and Brett Kavanaugh are on these issues, the realignment means that there are four justices potentially to the right of them,” said liberal Yale law professor Abbe Gluck.

Democrats during this week’s hearings have sought clues on how Barret would approach abortion cases and the Trump-backed lawsuit against Obamacare. Much to Democrats’ frustration, she provided few indications of how she might rule, though she acknowledged how a legal doctrine could save Obamacare from its latest challenge.

Meanwhile, much of Trump’s broader health agenda remains at stake in the courts, as do new controversies that may arise during the coronavirus pandemic. Just this week, health experts in JAMA looked at whether coronavirus vaccine distribution plans that prioritize vulnerable minority populations hard hit by the virus could face legal challenges. A case involving pandemic-related abortion rules that was turned away by the Supreme Court just last week is still expected to move quickly through lower courts and could come back before the justices.

A solidly conservative bench may be more likely to preserve an appeals court ruling that upheld Trump’s expansion of short-term health plans, which are cheaper than Obamacare coverage because they typically exclude the law’s protections, including those for preexisting conditions. A similar challenge involving another Obamacare alternative known as association health plans is still winding through lower courts. Republican-appointed judges who’ve reviewed those cases have rejected challengers’ claims that the health plans are invalid because they undermine Obamacare.

The Supreme Court is also widely expected to back the administration’s position in challenges to its rules cutting off federal family planning funds to Planned Parenthood and other abortion providers. A conservative-leaning panel of the 9th Circuit Court of Appeals has allowed the policy to take effect nationwide, while another appellate court has blocked it only in Maryland. Abortion rights supporters have asked the Supreme Court to overturn the Trump rules.