Donald Trump, who has so far failed to bring down Barack Obama’s flagship law on health insurance, will he win his case after his mandate, thanks to his in-depth reshuffle of the Supreme Court?
The highest American court, of which three of the nine wise men were appointed by the outgoing president, began on Tuesday the examination of this law of 2010 nicknamed “Obamacare”, that the Republicans have never ceased to challenge in the political arena and in court.
Its decision, expected in spring 2021, is likely to deprive more than 20 million Americans of health coverage at a time when the Covid-19 pandemic is wreaking havoc in the country.
If the Court accepts, as demanded by Donald Trump’s government, to completely strike down the Affordable Care Act (ACA), it would also remove the protections granted to more than 130 million people with chronic conditions.
Associations in the health sector – doctors, hospitals, insurance companies and patients – have asked the court to preserve the law, warning of possible “chaos” if it is overturned.
Before the start of the hearing, which takes place by telephone because of the Covid-19, protesters gathered in front of the temple of law in Washington, waving signs “Medicine for all” and chanting “Health is a human right “.
– “Not hostile” –
These huge stakes sparked heated debate during Judge Amy Coney Barrett’s confirmation process, which Republican senators rushed through just before the Nov. 3 election.
The choice of this conservative magistrate to replace the progressive icon Ruth Bader Ginsburg, who died in September, raised the alarm on the left: Justice Barrett has indeed criticized in the past the decisions of the Supreme Court which had validated with a narrow majority the law in 2012 and 2015.
She wants to “get rid of it”, assured Democratic presidential candidate Joe Biden during the campaign. Now president-elect, the former vice-president of Barack Obama is due to speak on the subject in the afternoon.
“I am not hostile” to this reform, nor “on a mission to destroy it”, defended the magistrate during her hearing in the Senate.
Not convinced the elected Democrats of the Senate Judiciary Committee had boycotted a first vote on his candidacy. On their empty seats, they had posed huge photographs of beneficiaries of the law.
– Burning back –
In its original form, Obamacare required all Americans, even those in good health, to purchase insurance on pain of financial penalties and required companies to insure all potential customers, regardless of their state of health.
This reform has improved coverage for millions of Americans in a country where medical services are extremely expensive. But Republicans have always viewed compulsory insurance as an abuse of government power.
As soon as he arrived at the White House, Donald Trump tried to repeal the law but suffered a stinging setback in 2017 in Congress.
Republican elected officials, however, managed to amend it, removing the financial penalties resulting from the lack of insurance.
However, the Supreme Court had validated the law in 2012 by ruling that these fines could be considered as taxes and justified the intervention of the State.
The several Republican States then introduced new legal remedies, arguing that the law no longer held.
In December 2018, a Texas federal judge ruled in their favour: “The keystone” of the building had fallen, the entire law is unconstitutional, he ruled.
– “Scalpel” –
His judgment, suspended for the time of appeals, was partially validated in 2019: an appeal court ruled that the obligation to insure was indeed illegal, but left it to another court to judge whether the law was completely zero.
The Democrats then asked the Supreme Court to intervene to prevent the law from collapsing.
The high court must therefore essentially answer this question: can the law stand without this component?
The Trump administration pleads no. But in June the Court invalidated another – small – portion of the text without dropping it. It is better to “use a scalpel than a bulldozer” to correct “a constitutional defect”, had justified its leader, John Roberts.