BOB: And I’m Bob Garfield. A decision looms at the Supreme Court over a case by the name of King v. Burwell that could, after dozens of votes on repeal and one previous Supreme Court case, finally upend the Affordable Care Act.
CBS: At issue - whether people who live in states that don’t run their own health insurance exchanges are eligible for federal subsidies to help pay for their insurance
PBS: The challengers and conservative legal scholars say the law is crystal clear - it says subsidies should go only to people who get insurances through an exchange established by the state
MSNBC: If the court agrees, it blows a huge hole in the ACA because it means people in as many as 37 states will suddenly lose their subsidies. the effects would be likely catastrophic. 8 million people could lose their health insurance. premiums could skyrocket…
BOB: Yikes. A dispute over 4 words in the legislation -- “Established by the state” -- that could effectively dismantle Obamacare. Elizabeth Wydra is chief counsel at the public interest law firm, Constitutional Accountability Center which has filed an amicus brief in support of the ACA.
WYDRA: The way that this case came about, was at a political conference, conservative groups that were opposed to the affordable care act were looking at ways that they could get rid of Obamacare. someone said hey I found this glitch in the statute “established by the state” and we think we can use that to drive a stake through the heart of the Affordable Care Act.
BOB: So, can people living in states which haven’t established their own exchanges receive crucial subsidies from the federal government? That’s the big question for the court. But if you’re a little confused about this, you’re not alone. A Kaiser Poll released this week found that 70% percent of Americans know little or nothing about the case. And according to Wydra, the media are awash in myths about the Obamacare dispute. Myth number one is about those 4 words:
MADDOW: The case is basically over a drafting error, almost a typo
MATTHEWS: Some people say it’s illogical, like it must have been a glitch, a mistake in the writing.
WYDRA: Even the challengers aren’t saying this is a typo anymore…
The members of Congress who are responsible for drafting and enacting the law have said, you know, this isn't really an error in the language because when you look at the statute and read it as a whole, which the supreme court tells us is the way that we should read statutes, the law is clear that tax credits are to be available nationwide. you know, knowing this lawsuit is here could we have written it more clearly? Sure. But if you read it in its entirety, the law is pretty clear.
BOB: Myth number 2: that the Supreme Court is about to rule on the constitutionality of the Affordable Care Act.
CLIP What happens if five justices of the US supreme court rule those state subsidies, the way they are positioned right now which is such an integral part of the whole Affordable Care Act, is unconstitutional?
WYDRA: The first time the Affordable Care Act came to the Supreme Court, that was a question that was about big issues of constitutional law. But this time, it's a question of statutory interpretation. I think part of the reason people think it is a big question of constitutional law is that the consequences if the court were to rule against the availability of tax credits would be so severe that it would be basically tantamount to striking down the law. The law is a 3 legged stool: you have the individual mandate, the protections for people who have preexisting conditions, and then these tax credits to help people afford health insurance on the exchanges. And if you take away the tax credits, then basically the stool falls over.
BOB: Alright, myth number three is the notion that this case is sort of the final showdown between the conservative and liberal wings of the court.
CLIP You have five Republicans who clearly don't like President Obama, who clearly don't like the Affordable Care Act and with this one vote they can take a huge chunk out of the law and basically decimate in 2/3 of the states.
WYDRA: Even though it's very politically charged, it is a case about interpreting statutes. Justice Scalia, Justice Kennedy, Justice Thomas, all these conservative justices have signed onto the idea that you read the laws as a whole instead of taking 4 words in isolation which is the only way that the conservative challengers to Obamacare can win in the Supreme Court. I think it's also interesting to think about Chief Justice Roberts, who cast the deciding vote the last time the Affordable Care Act was before the Supreme Court, upholding the law as constitutional, and some have suggested that this case is a way that he can atone for that within the conservative community. But I thin kthat he's goin got be more concerned about making sure that he and the court is seen as following the law where it leads them, and not give into those political pressures.
BOB: Myth number four that business, and especially the healthcare industry, want Obamacare to go down.
CLIP Doctors are leaving their profession because they say they can't do it. It doesn't work for them.
WYDRA: We've seen that pretty much everyone with a stake in the healthcare industry, from providers to hospitals, doctors groups, nurses groups have filed briefs in the Supreme Court in support of the Affordable Care Act and the availability of tax credits. And in fact as economists have shown, if the court rules against the availability of tax credits, these businesses that have a stake in healthcare could take a big hit.
BOB: Myth number five that the battle pits states and the federal government against one another, especially I suppose the red states against the overweening federal colossus.
CLIP The federal government was trying to strongarm states and to force them to establish their own health insurance exchanges.
So not only do we want to make sure that families don't suffer because of the failures of this law, we also want to give states the freedom to go their own direction and make it better.
WYDRA: So normally conservatives are the ones putting forth these arguments about how it's important to give states flexibility and you know pro federalism. But Justice Kennedy said the interpretation if you take the challengers view, would put states to a choice that isn't really a choice because if they chose not to set up an exchange, then their insurance market would be sent into a death spiral, that's what economists have called it, and their constitutions would lose millions of dollars in essential tax credits to help them get health coverages. That's one of the ironies here, is that if Republicans who generally are opposed to Affordable Care Act win in this case they can have a huge political liability placed on their doorstep because 6.4 million Americans will be affected by a court ruling taking away tax credits in states where the federal government is running the health insurance marketplace. And right now there basically is no plan from these Republican leaders to restore those tax credits. But there are millions of Americans who will be looking to them to do something.
BOB: Alright now you represent the cort group of liberal activists. And you have filed an amicus brief in support of the Affordable Care Act in this case. I know what you wish to happen. I'd like to know what you think will happen.
WYDRA: You know you don't have to wonder what the folks who wrote the law were thinking when they wrote it. Because they're here! We filed a brief on behalf of them in the Supreme court saying we wrote the law to make tax credits available for all americans who need them on any exchange. So if the court follows its own precedents that you read statutes in their entirety, then i think the court will rule in favor of the Obama administration. But it's the Supreme court so you never know.
BOB: Elizabeth, thank you so much.
WYDRA: It's my pleasure, thank you so much for having me.
BACK ANNOUNCE: Elizabeth Wydra is chief counsel at the Constitutional Accountability Center, a progressive public interest law firm in Washington DC.