The Center for Law, Health and Society represents the culmination of research, educational and community outreach initiatives developed in the health law field at Georgia State University. For more information about the center, visit clhs.law.gsu.edu.

Prof. Fuse Brown discusses impact of decision in King v. Burwell on the future of the ACA: “Affordable Care Act is Here to Stay”

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FuseBrown_headshot-300x300On June 25, in King v. Burwell, the U.S. Supreme Court upheld the Affordable Care Act’s premium subsidies in federal exchanges in a 6-3 decision, written by Chief Justice John Roberts. This is a huge win for the government and for the millions of people who receive subsidies to buy health insurance on federal exchanges.

Importantly, Roberts’ opinion did not rely on the legal doctrine of Chevron deference to uphold the IRS’ interpretation permitting premium subsidies on federal Exchanges. Instead, the Court made the interpretation itself, relying on the ACA’s broader context and structure to construe an otherwise ambiguous provision of the law. This means that a future (Republican) administration cannot reinterpret the ACA to remove the subsidies from the federal exchanges. It also means the political issue of removing federal subsidies with the stroke of a pen is off the table for the 2016 presidential election.

The ACA now has withstood two major Supreme Court challenges and a presidential election in 2012. It would appear the ACA is here to stay. There are at least three reasons the ACA is becoming increasingly entrenched:

  1. Millions of individuals nationwide now benefit from the ACA’s expansion of insurance coverage and premium assistance;
  2. The health care industry and states have sunk considerable resources and time to implementing the ACA and do not want to abandon that effort in favor of repeal or a replacement; and
  3. the Supreme Court, led by Roberts, has twice reviewed and turned away fundamental challenges to the ACA, upholding its core purposes.

These are three powerful tides pulling in favor of the ACA’s survival and pushing against its repeal.

Behavioral economics describes the principles of “status quo bias” and the “endowment effect,” which mean that individuals and institutions favor maintaining the status quo, especially when one is receiving benefits, over retrenchment or change.

Now that millions of individuals are receiving the ACA’s benefits and states and industry have invested in the implementation of the ACA, there is a significant political inertia against any change that takes those benefits and investments away. The ACA is more rooted than it was the first time the Supreme Court upheld it in 2012, and it is likely here to stay.

Erin C. Fuse Brown, assistant professor of law, is a faculty member of the Center for Law, Health & Society. Her research interests are in the intersection of the business and regulation of health care delivery systems. Her recent scholarship has focused on policies affecting hospital prices for health care services and on the structural fragility of the right to health care in the Affordable Care Act.

This article was originally posted on the Georgia State University College of Law and Center for Law, Health & Society home pages.  This article was also posted alongside other expert commentary at The Conversation

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