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‘Jiggery Pokery’: Not Everyone Thinks Like Justice Antonin Scalia on the Affordable Care Act

By Januari Leo

Few pieces of federal policy have garnered as much vitriol and fervent support as the Patient Protection and Affordable Care Act (ACA). Often referred to as “Obamacare,” House Republicans have voted over 50 times to repeal President Obama’s signature legislation. Despite this opposition, the Affordable Care Act has proven virtually indestructible, and is well on its way to improving health outcomes for millions of Americans.

Since it was signed in to law in 2010, the ACA has been a lightning rod for controversy. The bill passed through the House of Representatives by a razor-thin 220–215 vote before being sent to the Senate, where it breezed through 60–39. In 2012, the law faced its first Supreme Court challenge. In a 5–4 ruling, with the majority opinion written by Chief Justice John Roberts, the Court determined that it was legal to require eligible citizens to have some form of health insurance, or be assessed a penalty tax. They also validated establishing either state-run or federal insurance Marketplaces, and gave states the choice of whether or not to opt in to Medicaid expansion.

In 2015, the ACA encountered its second major legal challenge. King v. Burwell called into question the authority of the law to allow citizens purchasing insurance from the federal Marketplace to receive premium subsidies, or if the government subsidies were intended only for those buying insurance from the state-run exchanges. On June 25, the day before the monumental marriage-equality decision, the court once again validated the ACA by announcing that subsidies will remain in place on all exchanges. The majority opinion stated: “Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well.”

The majority opinion was written, once again, by historically conservative Chief Justice Roberts—who was nominated to the bench by President George W. Bush, and has served on the nation’s highest court since 2005. In his ruling, Justice Roberts wrote, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Many were surprised by his seemingly progressive stance, but Katy Caldwell, executive director with Legacy Community Health, sees it from a different perspective. “I don’t think he wanted his legacy to be known as dismantling healthcare in the United States,” Caldwell says. “If the ruling had gone 5–4 in the other direction, Obamacare would not have survived.”

In his scathing dissent, Justice Antonin Scalia—the longest-serving judge—had harsh criticism for the law: “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary [of Health and Human Services] gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it.” Calling the decision “pure applesauce” and “interpretive jiggery pokery,” Justice Scalia expressed clear frustration over the judicial outcome.

Despite the legal wrangling and political animosity, the ACA has been embraced by millions of Americans. In Texas, which has the nation’s highest documented rate of people living without some form of insurance coverage, over one million people have received private health insurance through the federal Marketplace website. According to the Texas Department of Health and Human Services, 1,205,174 Texans were enrolled in the federal Marketplace as of February 2015, and over 800,000 received some amount of tax credit. Trilena Amos, director of patient access and outreach with Legacy Community Health, states, “Over the past two years, Legacy’s 32 certified application counselors (CACs) assisted over 10,000 individuals in the application process, and enrolled almost 8,000. We worked seven days a week to keep up with the demand.”

All eligible citizens are required to have some form of insurance coverage, whether it is employer-sponsored, Marketplace, Medicaid, or Medicare. Those who do not enroll will be assessed a penalty when they file their taxes next April. For 2015, the penalty is either 2 percent of yearly household income or $325 per adult (and $162.50 per child), whichever is higher. The open enrollment period for 2016 starts on November 1 of this year, and ends on January 31, 2016. CACs and navigators, who provide their services free of charge, have been trained to walk applicants through the process and help them weigh important considerations such as medications on formularies, doctors on provider lists, hospitals in the networks, and what kind of coverage is available for the most reasonable price. CACs and navigators may not tell the applicant which plan to choose, but they can assist in making an informed decision.

While the enrollment period is only open during certain months each year, there are exceptions to the rule. Marriage, having a baby, losing coverage, or moving all constitute “life changes” that allow for enrollment outside of the annual enrollment period. This is notable in light of the recent marriage-equality decision, which allows a same-sex couple to make a legally binding commitment to one another. According to Out2Enroll, legally married same-sex couples are treated equally for financial assistance when purchasing coverage, regardless of where they live. Newly married couples should visit healthcare.gov to determine eligibility for the special enrollment period, and to locate the nearest CAC or navigator.

The Affordable Care Act has changed the scope of modern healthcare. Insurance companies can no longer deny coverage based on a person’s pre-existing conditions. Women can’t be charged more for simply being female. A focus on prevention means no co-pays for yearly checkups, HIV and diabetes tests, mammograms, vaccines, and flu shots. There are no more lifetime limits on the coverage amounts offered by insurance companies. While the law is far from perfect, it goes a long way toward making healthcare more accessible and affordable for all Americans. As Caldwell says, “Justice Roberts sent a very strong message with this opinion. Anybody who is going to challenge this law again had better think twice.”

Januari Leo is the director of public affairs for Legacy Community Health’s Montrose Clinic.


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