Deja vu at the Supreme Court? 5 ways this big health care case is different from the other one

Economic Indicators Associated Press

The never-ending political fight over health care hit the Supreme Court Wednesday, and insurance coverage for millions of Americans is on the line.

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Didn't we do this already?

Yes, but foes of President Barack Obama's signature law hope this time the justices will gut "Obamacare." The law's defenders say it's a trumped-up attack.

Still sound familiar? Actually, a lot has changed since the Supreme Court's big health care decision of 2012.

Five ways this time is different:

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PEOPLE ALREADY ARE USING THE HEALTH CARE PLANS

The first case came as major parts of the law were being phased in. The promised subsidies to help low- and middle-income families afford insurance were not available.

Now the law is in its second year of providing coverage to people who are not insured through their jobs. More than 11 million people are enrolled; nearly 9 out of 10 receive tax subsidies to help cover the cost.

If the Supreme Court rules against the government, many would be unable to afford their premiums.

About 8 million people in the affected states would lose their insurance, according to studies by the Urban Institute and the Rand Corporation.

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IT'S NOT A CONSITUTIONAL ISSUE

The justices ruled in 2012 that requiring nearly everyone in the country to get insurance or pay a penalty tax did not violate the Constitution.

This case comes down to four words within the law's 900-plus pages.

Opponents of the Affordable Care Act say the wording clearly limits subsidies to consumers who sign up for insurance through health care exchanges "established by the state." They argue that in the two-thirds of states that declined to set up their own online marketplaces and instead defaulted to the federally run exchange, residents do not qualify for subsidies.

The administration says that in the context of the law, the phrase encompasses all the exchanges, state or federally run, and that Congress intended for subsidies to be available everywhere.

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SOME STATES ARE OFF THE HOOK

However it goes, the case should not directly affect subsidies for people in the 13 states that set up their own marketplaces.

They are California, Colorado, Connecticut, Hawaii, Idaho, Kentucky, Maryland, Massachusetts, Minnesota, New York, Rhode Island, Vermont and Washington. The District of Columbia did, too.

The situation is muddier in Nevada, New Mexico and Oregon. They created exchanges but rely on the federal government to determine eligibility.

The other states punted on setting up marketplaces. Their residents have been signing up and receiving subsidies through the federal exchange, HealthCare.gov, and those are the subsidies at issue.

Challenging the law are four Virginia residents who do not want to buy health coverage or pay a penalty. They argue that if the subsidies were not available in Virginia, health insurance would be too expensive for them and therefore they would fall under the law's exemption from paying a penalty.

The Competitive Enterprise Institute, an anti-regulatory group, recruited them and is paying for the legal challenge.

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THERE ARE WAYS TO SAVE THE LAW IF OBAMA LOSES

If the court rules that the federal exchanges cannot award subsidies, Congress theoretically could fix the law with a simple edit. But politics makes that difficult.

Republicans, who run both houses of Congress, have pledged to repeal and replace the health care law, not to tweak it.

The states without their own exchanges are predominantly Republican-led ones where political leaders wanted nothing to do with the law passed solely by congressional Democrats in 2010. Many declined to expand their state-federal Medicaid programs when the Supreme Court ruled they did not have to.

Those states still could set up exchanges to save their residents' subsidies. But it would take time and might not be politically viable.

Some Republicans from potentially affected states are looking for other ways for Congress to at least temporarily assist people who could not afford insurance if the court ended their subsidies. Such a plan would be politically tricky.

Congressional Republicans could try to negotiate some big changes to the law with Democrats in return for the change needed to help those losing subsidies.

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BUT IT COULD BEGIN A DEATH SPIRAL

Losing subsidies for millions of people could cause the whole system to collapse.

The insurance marketplaces sell coverage from private insurers. The subsidies that keep prices down also attract younger and healthier customers.

If the subsidies disappear, more healthy people would decide insurance was too expensive, and risk going uncovered. That would leave a sicker, more expensive pool of customers for insurers, which would have to raise their rates, driving even more people out.

Cutting off the subsidies would be "disastrous," liberal Justice Ruth Bader Ginsburg said as the court heard arguments Wednesday.

But Justice Antonin Scalia, a conservative, said he believes Congress would take action to fix things.

The decision appears to rest with two justices who seem to be in the middle — John Roberts and Anthony Kennedy.

The ruling is expected by late June.

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Associated Press writers Mark Sherman, Ricardo Alonso-Zaldivar and Alan Fram contributed to this report.