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. Votes to repeal the bill have never passed the Senate. More and more Republican governors are working with President Obama’s administration to consider expanding Medicaid. And the two attempts to upend the act in the Supreme Court 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 challenged even benign requirements such as signing a form claiming a religious objection to allow for an independent insurer to provide contraception coverage. While the lower courts have been ruling in favor of women, the cases will soon be returning to the Supreme Court for consideration.

In addition to Hobby Lobby, the Court also decided NFIB v. Sebelius, in which it held that the act’s individual mandate is constitutional, and King v. Burwell, in which it held that the act provides tax credits to purchase coverage through both state and federal insurance exchanges. An overview of these three cases is below.

National Federation of Independent Business v. Sebelius

hThe 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.

King v. Burwell

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.

hIn 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.”

Burwell v. Hobby Lobby Stores, Inc.

hThe 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. The five federal appeals courts to consider the issue so far have all rejected their claims, but the lawsuits continue. Plaintiffs in four cases are seeking review from the Supreme Court. Their petitions will likely be considered by the Court late this year.


The attacks against the Affordable Care Act have failed. 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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