The next Supreme Court justice must protect the Affordable Care Act | Opinion

Justice Ruth Bader Ginsburg fought for equal protection under the law, which must extend to health insurance coverage.

In this file image of the U.S. Supreme Court building in 2016, a sign is held up that reads "ACA Is Here To Stay" after a ruling was announced in favor of the Affordable Care Act. June 25, 2015, in Washington, D.C. Now down a justice since the passing of Ruth Bader Ginsburg, the Supreme Court will review a case challenging the ACA this fall.Read moreMark Wilson / Getty Images via MCT

by Anjali Bhatla and Vivek Nimgaonkar, For The Inquirer

Published Sept. 23, 2020, 12:44 p.m. ET

Ruth Bader Ginsburg’s career was undoubtedly a remarkable one, both in her ability to excel as the second woman appointed to the Supreme Court, and the poignance of the legal principles she championed. A fundamental principle that emerged over her career was the notion that every American deserves equal protection under the law. In supporting the Equal Rights Amendment, Ginsburg memorably argued for “a legal system in which each person will be judged on individual merit and not on the basis of an unalterable trait of birth.”

As medical students, we have always found the notion that we all deserve equal treatment to be deeply resonant. Medical school has repeatedly demonstrated that so much of our health is out of our control. We have witnessed patient lives fundamentally changed by sudden diagnoses that can alter quality of life in a moment’s notice. Most recently, the current COVID-19 pandemic has created disruptions including prolonged hospitalizations and long-term symptoms for Americans who have been infected without warning. The thin line between health and illness can be difficult to predict, let alone control. Equality of treatment regardless of background is therefore a foundational principle to ensure that all individuals can weather unpredictable and uncontrollable threats to their health.

Our obligation to provide equal treatment motivates a bedrock of the 2010 Affordable Care Act (ACA): the protection of patients with preexisting conditions. This protection prevents insurance companies from denying coverage, or prohibitively increasing insurance costs, because a patient becomes ill. It is a policy supported by the majority of the American people in part due to its fairness in preventing patients from being punished by circumstances out of their control.

Sadly, the death of Ginsburg leaves the outcome of a Supreme Court battle over the ACA very much in doubt after previous decisions before the court narrowly upheld the law.

While Republican legislative attempts to repeal the Affordable Care Act in 2017 received a great deal of national attention, less focus has been placed on a challenge to the Affordable Care Act now facing the Supreme Court in an upcoming fall session. The case — the union of California v. Texas and U.S. House of Representatives v. Texas — features an argument supported by the Trump administration that the Affordable Care Act is untenable in the absence of the individual mandate to buy health insurance, which was eliminated with the Republican tax reform bill in 2017.

While the validity of the legal standing of the ACA challengers is dubious, it is undeniably true that the individual mandate was a key pillar of the Affordable Care Act, installed to make the preexisting condition protections financially feasible. A ruling by the Supreme Court against the ACA could eliminate preexisting condition protections, insurance access, and essential health benefits such as coverage of preventative primary care services like flu vaccinations that people need, especially during a pandemic.

As President Donald Trump prepares to nominate a justice to the Supreme Court, we as Pennsylvanians must demand our senators ensure that key protections of patients with preexisting conditions be safeguarded. Our two senators have vastly different records when it comes to the Affordable Care Act: Sen. Bob Casey has voted against ACA repeal, while Sen. Pat Toomey supported the Republican repeal effort in 2017.

Sen. Casey has already stated that he does not believe a Supreme Court nominee should be considered until after the election. Sen. Toomey clearly stated in 2016, when President Barack Obama nominated a replacement to fill Justice Antonin Scalia’s vacancy, that “with the U.S. Supreme Court’s balance at stake, and with a presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice.” Sen. Toomey has now reversed his position, stating that he supports proceeding with the nomination process. With the balance of power in the Supreme Court hanging in the balance, Sen. Toomey’s words from 2016 have salience. Looking ahead, he must explain how the millions of Pennsylvanians with preexisting conditions will be protected.

The passing of Ruth Bader Ginsburg was the loss of an American legal giant. But the notion that we are all equal under the law regardless of sex remains as a legacy of her work. The corollary that all Americans should be equally protected, regardless of their health, should not die with Ginsburg. Demand that our Pennsylvania senators ensure that this is the case now and vote for leaders who do so in November.

Anjali Bhatla is an MD/MBA candidate at the University of Pennsylvania’s Wharton School and Perelman School of Medicine, where Vivek Nimgaonkar is an MD candidate.