The future of the Affordable Care Act after Justice Ginsburg's death

Given her health problems over the past several months, it was not surprising that Justice Ruth Bader Ginsburg finally succumbed to these challenges.

The news of her death was still shocking to many, especially as it comes in the midst of a hotly contested political campaign. Justice Ginsburg's passing will have a significant impact on the United States Supreme Court as a new court tackles issues, which will impact generations of Americans.

One such issue is the constitutionality of the Affordable Care Act. In issuing its decision in 2012 on the constitutionality of the individual mandate under the ACA, a 5-4 majority of the Supreme Court found that the individual mandate and the related penalty for failure to obtain such health coverage was a proper exercise of Congress' taxing power.

After this decision it appeared that the constitutionality of the ACA was a settled issue; however, legal attacks on the ACA have continued. After the Tax Cuts and Jobs Act of 2017 eliminated any penalty for failing to comply with the individual mandate, several states filed an action in the U.S. District Court for the Northern District of Texas taking the position that the elimination of the tax penalty meant Congress was no longer exercising its taxing power and therefore, the individual mandate was no longer constitutional.

On Dec. 14, 2018, the District Court issued its decision and determined that the individual mandate was no longer constitutional. The court also found that the individual mandate was an essential component of the ACA, and the rest of the act would not operate as intended without the individual mandate, so the individual mandate could not be "severed" from the rest of the ACA and the entire act should be struck down.

The District Court's decision was appealed to the U.S. Court of Appeals for the Fifth Circuit. Oral arguments were held on July 9, 2019. The Fifth Circuit issued its long-awaited decision on Dec. 18, 2019. In a 2-1 decision the Fifth Circuit agreed with the District Court that the elimination of the tax penalty caused the individual mandate to be unconstitutional.

The Fifth Circuit also found, however, that the District Court did not conduct a thorough enough analysis of the issue of whether the individual mandate is severable from the rest of the ACA such that the entire act did not need to be invalidated. The Appeals Court remanded the case back to the District Court for the lower court to do this analysis.

The states defending the constitutionality of the ACA filed a petition with the U.S. Supreme Court asking the court to immediately accept certiorari of the Fifth Circuit decision. To the surprise of many, the Supreme Court announced on March 2, 2020, that it had decided to accept certiorari.

Perhaps, trying to avoid the issue being even more highly politicized during the presidential campaign, the Court decided to delay oral arguments until after the election. Oral arguments are scheduled for Nov. 10, 2020.

Prior to Justice Ginsburg's death, it seemed highly unlikely that a majority of the court would vote to strike down the entire ACA, despite the fact the Trump administration and state attorneys general bringing the case have argued for this result.

There are several reasons why the court was unlikely to invalidate the entire ACA, but a primary reason was that Chief Justice Roberts, who was the key swing vote and author of the majority opinion in the original decision, would likely join the four "liberal" justices to uphold the ACA. Even if all of the "conservative" justices voted to strike down the act, it would be upheld in another 5-4 vote.

How might Justice Ginsburg's absence from the Court impact the case?

If a justice does not participate in oral argument in a case, the justice typically does not participate in the court's decision in that case. This is important as it relates to President Donald Trump's nominee to the Court to replace Justice Ginsburg.

President Donald Trump has announced he intends to move forward with a nomination. If the Senate approves the nominee and he/she is seated prior to Nov. 10, then it is likely the new justice will attend the oral arguments and participate in the decision of the court. This would make it more likely that the ACA will be struck down than if Justice Ginsburg were still on the Court, but this result would still be far from certain, as explained below.

If a new Justice is not confirmed and seated before Nov. 10, and the court decides not to delay the oral arguments or have an additional argument at a time after the new justice has been seated, then it is possible, if not likely, that there will be a 4-4 decision from the court, with Chief Justice Roberts joining Justices Kagan, Sotomayor and Breyer.

If this were the result, the Fifth Circuit's decision would be upheld, and the case would be remanded back to the Northern District of Texas for the original judge to conduct a more thorough analysis of whether the individual mandate is severable from the rest of the ACA.

Regardless of the decision from the District Court, any decision would almost certainly be appealed to the Fifth Circuit and then to the Supreme Court. This would mean that a "final decision" would likely not be available for years. It is also important to note that it is unclear how the justices will look at the specific issue of severability. It is possible that a majority of the justices could decide that the individual mandate could be severed from the ACA without invalidating the entire ACA.

So it is unclear exactly how Justice Ginsburg's passing will impact the ACA, but it is clear that the future of the ACA is more uncertain than it would have been had Justice Ginsburg been able to continue on the Court.

• Taryn Stone and Kevin Woodhouse are partners in the law firm of Ice Miller LLP.