hPassed in 2010, the Affordable Care Act (ACA) has revolutionized health insurance in the United States. Over sixteen million Americans have health insurance today because of the ACA. Three million young people kept health insurance coverage because they are now able to stay on their parents’ plans. Health care costs are growing at the lowest rate on record, premiums are 15 percent lower than had been projected, and the ACA will reduce the federal deficit by more than $100 billion over the next 10 years.

But from the day the ACA was signed by the president, conservatives have tried to unravel it. There have been countless votes in Congress, open resistance from many states that have left their poorest residents uninsured, and a “never-ending saga” of court cases.

Yet the ACA has survived. More and more Republican governors are working with President Obama’s administration to consider expanding Medicaid. And two attempts to upend the act in the Supreme Court, first in NFIB v. Sebelius (which held that the act’s individual mandate is constitutional), and then in King v. Burwell (which held that the act provides tax credits to purchase coverage through both state and federal insurance exchanges), have lost. After five years of controversy and uncertainty, it is now clear the ACA is here to stay.

Still, conservatives continue their attempts to chip away at the act. The Supreme Court’s ruling in Burwell v. Hobby Lobby opened the door for businesses to cut the reproductive services required by the ACA from their employee’s health care plans. New lawsuits have gone a step further, challenging the requirement that schools and employers with religious objections to contraception sign a form claiming the objection so an independent insurer can provide contraception coverage. These new suits are now before the Court this term.

An overview of the constitutional attacks on the ACA, as well as Hobby Lobby and the new contraception cases before the Court this term, is below, beginning with the pending litigation.


Zubik v. Burwell and the Consolidated Contraceptive Mandate Cases

In the spring of 2016, the Court will hear its fourth challenge to the ACA in Zubik v. Burwell. As in Hobby Lobby, the Court will address the ACA’s contraceptive coverage mandate. The Court has consolidated seven cases that challenge the provision, each of which lost their challenge in the appellate court.

The Department of Health and Human Services (HHS) has issued regulations to accommodate religious-affiliated nonprofits and closely held corporations that have a religious objection to providing contraceptive coverage as part of their employee (or student) health insurance plans. Under the regulations, these organizations can obtain an exemption from the contraceptive mandate just by notifying HHS of their religious objection. Once the objection is noted, the federal government steps in to cover the cost of contraception coverage so that the employees and students of objecting organizations can still receive free contraception.

But the plaintiffs in these cases claim that HHS’s accommodations do not go far enough, and therefore violate the Religious Freedom Restoration Act (RFRA). They argue that by forcing them to apply for an exemption, HHS is still making them complicit in providing contraception to their workers, even if they are not the ones directly providing or paying for the coverage.

So far, all but one of the eight courts of appeals that have ruled on such challenges have rejected them. The plaintiffs bringing these claims collectively employ tens of thousands of people nationwide. A Supreme Court ruling in plaintiffs’ favor would put the health of thousands of women across the country in jeopardy.

These cases will also test the integrity of the Court, particularly its five conservative justices. In Hobby Lobby, the Court downplayed the impact of its decision by noting that women would still receive free contraception under the very HHS accommodation that is now at issue—an accommodation, the Court said, that “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” If the Court now rejects the accommodation under RFRA, Hobby Lobby will be remembered as a striking example of judicial mendacity.

National Federation of Independent Business v. Sebelius (2012)

The first challenge to the ACA came to the Supreme Court in 2012. In NFIB v. Sebelius, a group of businesses challenged one of the act’s key components: the individual mandate. In a 5-4 decision, Chief Justice John Roberts upheld the requirement as a valid exercise of Congress’ “taxing and spending” power, but, in doing so, he drastically limited Congress’ ability to enact future laws and opened the door for states to leave millions of their own residents uninsured.

It is a fundamental principle of constitutional interpretation that, once a majority of the Court has upheld a law, it should not decide whether the law is valid on alternate grounds. But while Chief Justice Roberts upheld the individual mandate as a tax, he also found that it could not be justified by Congress’ power under the Commerce Clause. This congressional power—which allows Congress to pass laws to regulate interstate commerce—has been used to enact anti-discrimination, environmental protection, labor, and consumer protection laws for over a century. As Justice Ginsburg noted in dissent, Chief Justice Roberts’s opinion “harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

It is no surprise to see Chief Justice Roberts needlessly reach for the Commerce Clause question. AFJ has documented repeated efforts by the Court to aggressively reshape the law by addressing questions not squarely before it.

Another section of the ACA required states, using federal funds, to expand their Medicaid programs to cover more residents. If a state refused, the federal government would eliminate all Medicaid funding for that state. Chief Justice Roberts’s opinion struck down this provision as an unconstitutional imposition on state sovereignty. As a direct result, 22 states have refused to expand Medicaid programs to cover some of their poorest residents. Yet despite these unfortunate holdings, the core of the Affordable Care Act was upheld by Chief Justice Roberts.

Burwell v. Hobby Lobby Stores, Inc. (2014)

The ACA requires health insurance plans to provide all Americans with access to preventive care without out-of-pocket costs. For women, that care includes access to common forms of birth control.

In 2014, the Supreme Court’s opinion in Burwell v. Hobby Lobby allowed for-profit corporations to opt-out of that requirement if they claimed a religious objection to birth control. Access to birth control is fundamental to improving the health of women and their families, but it is expensive. Co-pays for birth control pills can run up to $600 per year, a significant cost for low-income families. That can lead women to use birth control inconsistently or not at all.

The Supreme Court decided to leave this fundamental issue of access not to women, but to their bosses.

The Religious Freedom Restoration Act (RFRA) prohibits government action that places a substantial burden on a person’s religious practice unless there is a compelling government interest. In Hobby Lobby, the Court held that RFRA requires that closely-held, for-profit corporations be allowed to opt-out of providing contraception.

In dissent, Justice Ruth Bader Ginsburg warned: “The court, I fear, has ventured into a minefield” of religious challenges under RFRA. She was right. Under the opt-out provisions, religious nonprofits use a short, standard form to certify that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services” and then notify their insurance provider. Once completed, the federal government—rather than the religious nonprofit—reimburses the insurance provider for any contraceptive costs.

The newest onslaught of litigation against the ACA has come from religiously-affiliated nonprofits who claim that even this simple accommodation impermissibly burdens their religious liberty by making them complicit in providing contraception. Seven of the eight federal appeals courts to consider the issue so far have rejected their claims. The Court has agreed to hear these seven cases (consolidated in Zubik v. Burwell) in 2016.

King v. Burwell (2015)

The ACA requires states to establish a health insurance exchange. If they fail to do so, the federal government will establish one on the state’s behalf. Today, a majority of states use a federal exchange. A separate provision of the ACA provides tax credits to qualifying Americans who enrolled in a health insurance plan “through an Exchange established by the State.”

Applying this provision, the IRS gives credits to eligible taxpayers in states that have established their own exchanges, and to those in states where the federal government has established an exchange on the state’s behalf. The plaintiffs in King argued that “established by the State” only includes state-run exchanges, and that the millions of Americans who have purchased insurance through federally-run exchanges were ineligible for the tax credits that make health insurance affordable.

In a 6-3 ruling, Justice Roberts again upheld a key provision of the ACA from attack.

The practical implications of the plaintiffs’ legal theory betray its implausibility, the Court ruled. Studies estimate that over eight million people could have lost coverage if the Court ruled in the plaintiffs’ favor. Worse, the market could have fallen into a death-spiral. Without tax credits, fewer people would buy health insurance and premiums would rise. The higher cost of insurance would lead to even more individuals dropping coverage, and premiums would continue to skyrocket. Eventually, only the sickest would have an incentive to stay insured, and the high cost of their care will drive up premiums even further, until the market collapses entirely.

The Court refused to accept that Congress included within the ACA a provision that rendered the ACA entirely useless. As Roberts wrote for the Court, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.


Past attacks against the Affordable Care Act have failed, and yet new attacks continue. The aggressive and unsupported legal positions taken by the act’s opponents have been a step too far for even the conservative Roberts Court. And the newest positions are even less credible. Despite five years of attacks in every branch and level of government, the ACA has survived. It’s time for Republicans to give up the fight and help in assuring the act’s continued success. More and more Americans are getting insured. Lives are being saved. The ACA is making a difference in all of our lives.

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