Can the ACA Survive SCOTUS Once Again?

This piece first appeared in our weekly newsletter, The Fallout.

Late last week, the Supreme Court granted the Biden administration’s request to step into the fight over the Affordable Care Act’s (ACA’s) preventive care provisions and reverse a Fifth Circuit Court of Appeals decision that threatens coverage entirely.

Specifically, the Court will hear arguments in Becerra v. Braidwood Management, a case first brought by religious employers who object to coverage for pre-exposure prophylaxis (PrEP), the drug that prevents HIV transmission. The case, which will be heard later this spring, places the ACA’s wildly successful preventive care mandate squarely in the conservative justices’ sights.

So why would the Biden administration ask this Court to step into a fight that threatens a foundational piece of the ACA and could open a pathway for all sorts of expanded religious refusals in health care? There’s no one answer to that question. Allowing the Fifth Circuit decision to stand unchallenged while the incoming Republican Congress promises yet another attempt to repeal the historic health-care law would be akin to ceding some ground in the repeal battle. And even though most Democrats have been eager to preemptively comply with the incoming authoritarian regime, they apparently still have some fight left in them when it comes to defending the ACA.

The case will also force Chief Justice John Roberts to once again choose between upholding the ACA or caving to partisan attacks on the law. Historically, Roberts has largely voted to uphold the ACA, with one notable exception: Voting to support religious challenges to the birth control benefit in Hobby Lobby v. Burwell.

Does that past vote in Hobby Lobby spell doom for PrEP coverage? We’ll see later this year.

The good news is the claims in Hobby Lobby, while spurious and ridiculous, were much more grounded in legal reality than anything the religious employers have brought in Braidwood Management. The bad news is that Hobby Lobby was argued and decided back when the Supreme Court had its last remaining guardrail secured. That ended with Donald Trump’s first presidency and the justices he brought to the Court. Since those appointments, the conservative majority has gleefully gone rogue, embracing a lawlessness that is rewriting statutory precedent and the Constitution itself in lock-step with conservative donors’ wishes. Braidwood Management is yet another example of this pivot, which makes the case one of the truest tests of Roberts’ legacy as chief justice.

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