Supreme Court looks split on ‘Obamacare’ challenge; key justice skeptical

WASHINGTON — Supreme Court justices appeared split along ideological lines Wednesday as they began hearing a challenge to the Affordable Care Act that, if successful, could gut a key part of “Obamacare” and deprive millions of people of health coverage. But as oral arguments began, a potentially decisive justice seemed at least open to the idea of upholding the law.

At issue are four pivotal words in the nearly 1,000-page law in a provision that stipulates subsidies will be available to those buying from marketplaces, or exchanges, “established by the state.” If the law is read literally, approximately 7.5 million middle-income Americans could lose their insurance in states where the federal government has set up an exchange instead of the states. 

An early reading of the judges’ questions suggest that they were divided along ideological lines, with Justice Anthony Kennedy again acting as the likely swing vote. A conservative on the nine-member panel, he has often cast the deciding vote in close cases.

Some interpreted his questions on Wednesday as encouraging for those hoping to uphold the tax credit provision against opponents of the health care law who brought forward the challenge, represented by attorney Michael Carvin.

Kennedy said he saw a “serious constitutional problem” should the federal government pressure states to set up their own exchanges or risk having their residents lose health care coverage. In a previous health care decision focusing on whether states could be coerced into expanding Medicaid, the justices said the federal government could not put excessive financial pressure on states in order to implement the law.

But he also appeared less than convinced by arguments by Solicitor General Donald Verrilli.

Justice Ruth Bader Ginsburg said the law set up flexibility for states to either set up their own markets or rely on HealthCare.gov, the federal exchange. Giving subsidies to people only in some states would be “disastrous,” said Ginsburg, who is in the court’s progressive wing.

Conservative Justice Antonin Scalia said that even if the statute was not what Congress intended, “it may be the statute Congress wrote.”

An unfavorable ruling for Barack Obama’s administration would cause marketplaces in states that use the federal exchange to collapse and insurance rates to spike as healthy people who could no longer afford insurance drop their coverage. Many health care economists say it would effectively mean the end of the law.

The legal question before the Supreme Court is much narrower than the one regarding the health care law in 2012, when the constitutionality of the individual mandate, which requires all Americans to buy insurance, was challenged and ultimately upheld.

Outside the Supreme Court, a few hundred demonstrators gathered to express their opinions on the law, which has been a political lightning rod since it was passed in 2009.

Planned Parenthood, labor unions and other women’s groups voiced their support for “Obamacare,” with some chanting “Health care under attack. Stand up. Fight back.”

Michelle Boyle, a Pittsburgh nurse, said taking away the subsidies provided by the ACA put middle-income Americans in an impossible bind.

“You shouldn’t have to choose between a roof over your head or health care — or ‘Do I go to the doctor today?’ or ‘Do I make sure my kids can eat something today?’” she said.

With wire services