With Supreme Court asked to weigh another Obamacare case, the election could decide if next administration will defend it

By Tierney Sneed and Tami Luhby, CNN

(CNN) — With an election approaching, the US Supreme Court is being asked again to consider the Affordable Care Act, the landmark 2010 health reform law that has been the target of non-stop conservative legal attack, with a challenge to the law’s mandates for no-cost preventive care coverage.

Right-leaning lower courts ruled partially in favor of the plaintiffs, deeming some of the mandates unconstitutional and putting in jeopardy cost-free coverage of certain services, including several cancer screenings and a popular heart medication.

The Biden administration’s Thursday request that the Supreme Court reverse the ruling puts a pre-election spotlight on how the conservative assault on the law has not ended even if the political will to repeal it has mostly dissipated. While not an existential threat to the Affordable Care Act, defenders of the law say that the mandates make it easier for millions of Americans – particularly those in marginalized communities – to access preventive care and improve their health outcomes.

“This Court’s review is warranted because the court of appeals has held an Act of Congress unconstitutional and its legal rationale would inflict immense practical harms,” US Solicitor General Elizabeth Prelogar wrote in the new petition to the justices. “Millions of Americans rely on insurance coverage for preventive services without cost sharing.”

The Supreme Court will likely not decide whether to take up the case until after the election. But the new appeal tees up the question of whether a second Donald Trump administration would put up a full-throated defense of the preventive care provisions if he is elected. Trump’s Justice Department, during his first presidential term, declined to defend the Affordable Care Act in a legal challenge brought by Republican-led states – a case that ended with the Supreme Court rebuffing arguments by the Trump administration and a coalition of Republican-led states that the entire law should be struck down.

CNN has reached out to the Trump campaign for comment on the latest lawsuit. The Harris campaign declined to comment.

In the current case, the challengers – businesses and individuals in Texas – have argued that the mandates that insurers provide cost-free care for certain preventive services violated the Appointments Clause. The 5th US Circuit Court, a conservative appeals court, agreed with some of their arguments, in a ruling that deemed unconstitutional mandates that stemmed from the recommendations made after the law’s enactment by the US Preventive Services Task Force.

Eliminating Obamacare’s requirements for no-cost preventive care could make it less likely that Americans would obtain important – and in some cases, life saving – screenings and services aimed at early detection of diseases. They include lung cancer screenings for certain current and former smokers; colorectal cancer screenings for adults ages 45 to 49; and the use of statins to prevent cardiovascular disease, as well as the HIV-prevention measures known as PrEP and counseling referrals for pregnant and postpartum women at increased risk of depression.

If allowed to stand, that precedent would cover any cases brought in Texas, Louisiana and Mississippi. The appeals court reversed parts of a trial judge’s ruling that would have blocked the mandates nationwide, and instead narrowed the ruling to apply just to challengers in the case.

Still, the Justice Department said in its filing Thursday, the appeals court ruling could prompt other courts in the circuit to issue more wide-reaching orders that would “universally” block the federal government from enforcing the mandates.

“This Court’s review is also warranted because of the immense legal and practical significance of the court of appeals’ decision,” Prelogar wrote, arguing that the 5^th Circuit’s ruling “threatens to disrupt a key part of the ACA that provides healthcare protections for millions of Americans.”

For the first time since it was enacted, Obamacare is not a main focus of the current presidential campaign, though Trump continues to say he wants to replace the Obamacare with a better plan and Vice President Kamala Harris has repeatedly accused him of wanting to repeal the law.

Representing the challengers is American First Legal, a conservative legal advocacy group led by former top officials in the Trump administration, including Trump White House aide Stephen Miller.

The challengers are also being represented by Jonathan Mitchell, a former solicitor general for Texas who helped craft Texas’ novel private enforcement abortion ban and who also represented Trump in the Colorado ballot access case.

Past Supreme Court battles over the law

The current case, known as Braidwood Management v. Becerra, is only the latest dispute over the Affordable Care Act that the justices have been asked to weigh in on.

In the most recent major case, the conservative high court voted 7-2 in 2021 to reject the Trump and Republican-led states’ arguments that the entire law should be thrown out because Congress zeroed out its individual mandate, which required Americans to have health insurance or face a penalty.

An earlier lawsuit attacking insurance marketplaces created under the law failed at the Supreme Court, as did the initial legal assault against the individual mandate. However, a mixed ruling from that first major Obamacare challenge undermined the law’s expansion of Medicaid to more working-age adults.

Amid the decade-plus legal war over the law, Republicans largely backed away from their promises to dismantle Obamacare legislatively, after a failed repeal attempt in 2017 divided the party and propelled Democratic victories in the 2018 midterms.

In the current Braidwood case, a 5^th Circuit panel said in June that some of the no-cost preventive care coverage mandates were unconstitutional because the members of the task force that recommended them were the sort of “principal officers” that should have been appointed by the president and confirmed by the Senate. The ruling left undisturbed the recommendations from the task force that existed at the time that the Affordable Care Act was enacted.

The request for Supreme Court review comes after the high court has issued other recent rulings dealing with the executive branch authority.

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