Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Part B News, in “Supreme Court Upholds ACA for Third Time, but New Threats Loom,” by Roy Edroso. (Read the full version – subscription required.)

Following is an excerpt:

One would think, after last week’s California v. Texas decision in the Supreme Court, that supporters of the Affordable Care Act (ACA) could breathe a little easier. It was the third SCOTUS case that threatened to overturn the law and, like the Court’s previous two decisions, this one, announced on June 17, saved the health care program also known as Obamacare and by a wider margin than before. …

“When the case was argued, a large portion of the time was spent on the question of whether the remainder of the ACA could be upheld if the mandate were simply severed,” says Stuart Gerson, member of Epstein Becker Green in the Litigation and Health Care & Life Sciences practices in Washington, D.C. “The plaintiff states raised a number of hypothetical arguments about burdens that would befall them if individuals, who no longer could be mandated to buy health insurance, somehow increased the cost of running their Medicaid programs both administratively and with respect to the Act’s minimum essential coverage provision.”  …

Not out of the woods, but…

None of this means the ACA is bulletproof in the Court. Justice Alito, who joined Justice Neil Gorsuch in the minority, insisted in his dissent that “the provisions burdening the States are inseverable from the individual mandate.” Justice Clarence Thomas, even though separately concurring with the majority on standing, nonetheless agreed with Alito on the inseverabilty argument, which he said “offers a connection between harm and unlawful conduct. And, it might well support standing in some circumstances, as it has some support in history and our case law.”

“If a justiciable case ever is presented, Justice Thomas might join with Justice Alito and find the ACA an unconstitutional act of Congress,” says Gerson. “On the other hand, Justice Kavanaugh, who has written extensively on the subject, would likely hold that the mandate is severable and that the rest of the ACA should survive.”


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