By Barry Kirschner

The survival of THE AFFORDABLE CARE ACT (Obamacare) is dependent on the perception of the Republican appointed members of the United States Supreme Court of the political harm that will result to its party if the Court rules as it has been asked to rule by their political allies. The twenty state Attorneys General who attacked the entirety of the Act plus the position of the United States Attorney General reversing its defense of Obamacare have played their political card with a legal theory devoid of integrity and scholarship.

But as in Gore v. Bush, and Citizens United they have a potentially winning theory before the Supreme Court. The “vote counter” theory is in place for a 5-4 ruling to give the Republican Party what it chooses. The vote counter theory is an offshoot of the might makes right theory, punishing the voters of a political party unsuccessful in winning elections at critical times when Supreme Court vacancies occur.


In 2012 the Obamacare ruling of the Supreme Court split 4-5 on whether congress had sufficient authority to regulate America’s health care industry as enacted pursuant to the Interstate Commerce Clause, Article I Section 8 of the United States Constitution. (Congress shall have power to . . . regulate commerce with foreign nations and among the several states . . .”). The fifth vote to allow survival of the Act was cast by Chief Justice Roberts who based his opinion on Congress’ authority to tax. The theory of invalidation expressed by the Republican members that Congress had no power to regulate such an industry under the Interstate Commerce Clause was defeated in the 1930s.

There are four votes which are beholden to the Federalist Society and the party that brought these Justices to fame and power. Thomas, Alito, Gorsuch, and Kavanaugh are in the bag, wholly separated from liberal precedent and disrespectful of its advocates. Roberts, now called the institutionalist by some because his disregard for precedent and recognized law is less complete than his four partners is equally committed to societal rule by the powerful, aided by the judiciary.

But Roberts, and perhaps others in this Supreme Court majority caucus may have their own ideas on the best way to maintain political and judicial power. And particularly Roberts may be sufficiently in tune with reality that he will realize that the demise of Obamacare will bring catastrophic results to the Republican Party, an entity for which he shows greater loyalty than the democratic traditions of the United States.

As a lawyer who represents disabled persons who had lost their ability to work and maintain employer based health insurance, it was apparent to me long before President Obama’s election that the health care system in America was already broken for tens of millions. Without being a spouse or employee of an employer kind enough to pay the bulk of health insurance benefits, sick people were already priced out of the private insurance market if they could gain insurance at all.

As a relatively small employer paying the expense of group health insurance over the years, the extraordinary expense of providing this benefit was increasingly passed on to the employees in the form of higher premium payments, higher co-payments, and less effective coverage. As a lawyer sometimes consulted by those who incurred services which were uninsured or for which insurance companies rejected payments after initial authorizations, it was easy to project staggering debt and bankruptcy for literally millions of persons across the nation.

Enter Obamacare. As Elizabeth Warren explains, the co-payments and expenses (such as for medications) still impoverish some . But for literally tens of millions of persons who were uninsurable, they are now able to get core medical coverage. Much of this is through Medicaid (AHCCCS) expansion. Much of the improvement comes from rates which are not dependent on the specific history of illness for the individual. Much of the improvement is based on the mandate of coverage availability regardless of pre-existing conditions, and for dependents who may be as old as 26 through existing employer group health policies.

For each person who can be insured, there are families of people relieved by knowing insurance is obtainable. For each hospital, particularly in rural America, the rates of non-payment for required emergency room service has stimulated far more financial health than would be the case under the prior non-system.

The Republican State Attorney Generals who challenged the law were (and are) following political leads and contributors. Many followed the momentum of the Tea Party frenzy begun in 2009 with a series of lies and fabrications about death panels. Some of these advocate know they’re participating in a charade. Senator Hawley from Missouri defeated Senator McCaskill in 2018 by campaigning as a friend of healthcare and a litigant to wipe out Obamacare without any mitigating alternative in place.

The Supreme Court justices may have no more integrity than Senator Hawley, but they will realize that their ruling to wipe out Obamacare will not be grandstanding. It would be a bomb blowing up access to health care for tens of millions of persons and bringing the entire health care system to incredible uncertainty. It will wreak havoc over business allies, not just human beings in need of health services.

The Republicans have the votes they need to abolish Obamacare with current members of the Supreme Court. But the members of the court, even just one of them, may act as a “Regent” disallowing the shouted preferences of a political party acting as an errant child. A decision which will cause a generally docile public to become engaged in the price of losing democracy in a society of ever increasing wealth disparity needs to be a threat to Republican Justices. For Obamacare to survive, at least one of them must believe that the scorn that will be heaped on him by the army of know nothings activated over the last decade to deprive people of access to health care is better than the political self harm which would be absorbed by their allies by giving them what they advocate in court.