Amy Coney Barrett, Ruth Bader Ginsburg and ObamaCare: What's next?

Yes, Justice Ginsburg served as a powerful example of what one determined woman could accomplish, but she also tipped the balance of the Court

When Supreme Court Justice Ruth Bader Ginsburg passed away earlier this month,  the hearts of countless Americans sank -- and then their minds started racing.

Yes, Justice Ginsburg served as a powerful example of what one determined woman could accomplish, but she also tipped the balance of the Court. Without her on the bench, many key decisions could wind up in a 4-4 tie. Not least among them is the outcome of California vs. Texas, which will determine the fate of the Affordable Care Act (ACA) aka "ObamaCare."

Justice Ginsburg came down in favor of the ACA’s individual mandate in 2012, and it was anticipated that she would once again side in favor of the law. But with oral arguments starting in November and Justice Ginsburg’s spot on the bench empty, it’s hard to determine what the outcome will be.  In 2017, the Tax Cuts and Jobs Act reduced the individual mandate penalty in the ACA to $0. The question in California v. Texas is whether zeroing out the penalty for the mandate invalidates the law just in part, or in its entirety.

AMY CONEY BARRETT WILL BE A PRO-GROWTH VOICE ON THE SUPREME COURT It could go one of two ways. One side will argue that a zero penalty means there’s no individual mandate; therefore, the ACA should be invalidated.

Getting rid of the ACA in its entirety would have a significant impact on individual and employer-based health insurance plans. Specifically, many could cease to exist. It's likely any result which invalidates the ACA in its entirety would contain a transition period that allowed those who are currently covered by an ACA plan time to find an appropriate coverage solution.

Another outcome would find that zeroing out the mandate does not actually invalidate the law in its entirety. Although there is no penalty for going without an ACA-qualified insurance plan, the law would continue as it does today.


It’s possible the potential verdict of this case won’t remain a mystery for long. President Trump has nominated Judge Amy Coney Barrett to fill the seat left vacant on the court by Justice Ginsburg’s death. The president has already encouraged the Court to invalidate the ACA, so it’s no surprise that he’s chosen a nominee who will likely reflect that desire.

CLICK HERE TO LEARN MORE ABOUT JUDGE AMY CONEY BARRETT  However, a recent poll found 52% of all likely voters believe the Senate should wait until after the presidential election to replace Justice Ginsburg. Before speculating on how that could impact the president’s reelection, it’s worth noting that an overwhelming 73% of Republicans believe the new Justice should be confirmed as soon as possible.

An increasing number of Americans find themselves without employer-provided health insurance. That means it’s best to avoid a tied decision on the case. In fact, a decision is in everyone’s best interest.


According to the Census Bureau, approximately 8%, or 26 million, of the US population was uninsured in 2019. This year, unemployment soared due to the coronavirus economic shutdown. It’s estimated that 27 million people lost their employer-based coverage. Americans may be torn over the ACA’s merits. Many value the law for its guaranteed protection of pre-existing conditions, coverage for children up to age 26, and coverage of the ten Essential Health Benefits (EHB).

Still, others find the cost of the ACA exceeds the benefits, and an attractive solution would be an alternative that provides consumer choice, while still protecting pre-existing conditions.

Ultimately, the Court won’t rule on these preferences, but on the law’s constitutionality.

It’s exactly this opportunity -- to break through the static and deliver a meaningful opinion on a law that impacts nearly every American -- that Justice Ginsburg would relish. And if President Trump’s nominee is appointed, we can expect the ACA to be reversed.

Jan Dubauskas is a health care expert, enthusiastic insurance pro, attorney and mom serving as Vice President of Twitter @DubauskasJan