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Health care law's defenders and foes rally before high-stakes arguments


On a cold morning that threatened rain, hundreds of concerned citizens, politicians, health care providers and activists gathered on the steps of the U.S. Supreme Court to voice their hopes for how the justices will vote after hearing arguments in a case that could unravel health care reform.

The case, King v. Burwell, centers on whether the language of the Affordable Care Act allows people living in states that use the federal insurance exchange to receive premium subsidies. Millions of people are likely to drop coverage if the subsidies in as many as 37 states are struck down, which would severely disrupt the insurance markets in those states.

Adrienne McLean, 26, a part-time medical assistant from Indianapolis, said she receives a subsidy of $175 a month, which reduced her premium to $80. “It would be devastating to lose my coverage,” she said. “I was just diagnosed with a disease that requires me to see a specialist. I'm feeling good about our chances of succeeding.”

But Rep. Louie Gohmert (R-Texas), a strong opponent of the Affordable Care Act, was rooting for the opposite outcome. “We're hoping the Supreme Court will actually do the right thing.” He wants the court to invalidate the Internal Revenue Service rule allowing subsidies in states that did not set up their own exchanges.

A ruling against subsidies likely would set off a so-called death spiral for the ACA, because healthier people who could no longer afford coverage would drop their coverage while sicker people will find a way to keep it. That would sharply drive up premiums, and it's expected that many insurers would leave the exchanges. It might well force the White House and congressional Republicans into negotiations on revising the entire law.

The central question of the case is whether the language of the Affordable Care Act allows Americans in states relying on HealthCare.gov for enrollment to receive premium tax credits. The IRS has been interpreting the law to allow subsidies in all states — a position the challengers say is wrong.

A decision is expected in June. After Wednesday's oral arguments, the justices are likely to hold a conference at the end of this week and possibly take a preliminary vote. Chief Justice John Roberts will assign the writing of the opinion if he is in the majority. If he is not, then the senior justice in the majority will assign the opinion.

Rep. Joe Barton (R-Texas), said outside the court Wednesday morning that the ACA language that the challengers are relying on in the case — that the law only provides for subsidies for coverage purchased in “an exchange established by the state” —was not a matter of “inartful language” but rather a means to entice states to operate their own marketplaces. “They intentionally set this up,” Rep. Barton said.

But the congressional Democrats who wrote the law strongly dispute that.

Dr. Donna Hurlock, a gynecologist from Alexandria, Virginia, who stood outside the Supreme Court Wednesday, said that, “Whoever pays for health care, controls healthcare.”

Families USA and the Center for American Progress, two pro-ACA groups, organized gatherings of reform supporters. One supporter, Sarah Lewis, 50, a registered nurse from Madison, Wisconsin, who was uninsured before the law's coverage expansion took effect last year, said the subsidized ACA coverage “saved my life.” She suffered complications from a gastric bypass operation that left her with anemia and iron deficiency. “If this case is lost, premiums will go up, and I'm (paying) the most I can afford to pay,” she said.

Dr. Marcus Sandling, a third-year internal medicine resident at Rutgers New Jersey Medical School, said he has noticed a significant difference since the law was implemented in terms of patients coming in with insurance. “For this to be potentially taken away is scary for me,” he said. He doubts that Congress will act to restore the subsidies if the Supreme Court strikes them down, and he also doubts that New Jersey would set up its own exchange to allow subsidies to resume.

Dr. Devon Fagel, a post-doctoral fellow at Yale University, said, “If this were to go away, there would be chaos in the medical system. The only people in the medical community that are opposed to (health care reform) are 65-year-old men who don't want to switch to electronic health records.”

Dr. Kevin Burns, a preventive medicine resident in Baltimore said, “The ACA is deeply embedded in the health care system. To suddenly remove such an enormous number of people and tax credits would undermine the insurance markets. That would reverberate across the system.”

Coco Jervis, a program director for the Washington-based Raising Women's Voices, said her group works with a lot of women who had to choose between buying food for their families and getting needed health care before the ACA. “For some women this really is a matter of life or death,” she said.

Paul Demko and Virgil Dickson write for Modern Healthcare, a sister publication of Business Insurance.