Upholding Affordable Care Act subsidies a moral, legal necessity


Since the Affordable Care Act was signed into law almost five years ago, there have been more than 50 votes in Congress plus multiple lawsuits attempting to repeal or weaken the landmark law. None of the bills have made it to the president’s desk, and though there are cases still pending, the heart of the ACA remains intact.

That is good, because the ACA is clearly succeeding in its goal of expanding health insurance coverage: 11.4 million people enrolled or re-enrolled in health care plans through the health insurance marketplaces set up by the ACA during the most recent open enrollment period that ended on Feb. 15. Furthermore, Gallup released a report this year explaining that the uninsured rate has dropped by 4.2 percentage points in the year since the act’s requirement to have health insurance went into effect.

Unfortunately, the subsidies established by the ACA for low-income individuals applying for health insurance through the newly-created marketplaces are now at risk. In the case pending before the Supreme Court, King v. Burwell (arguments were scheduled for March 4), the plaintiffs argue that subsidies should not be available in states that did not set up their own marketplaces (as opposed to states that did set up their own marketplaces). The plaintiffs contend that the ACA’s authors intended to incentivize states to set up their own exchanges by only offerings subsidies to individuals enrolling through state-established exchanges.  As such, those same authors did not intend to provide subsidies in states that use a federal marketplace.

In fact, nothing could be further from the truth. In recent months, several of the members of Congress who helped author the ACA have explicitly refuted the plaintiffs’ argument.  In an Op-Ed this past October, Sens. Tom Harkin and Ron Wyden, and Reps. Sander M. Levin, George Miller and Henry A. Waxman explained that “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces…The Affordable Care Act was designed to make health-care coverage affordable for all Americans, regardless of the state they live in.”


Furthermore, the analyses done by the non-partisan Congressional Budget Office before the ACA’s passage assumed that subsidies would be available in all 50 states.

The bottom line is this: ACA subsidies should be available to Americans in all 50 states. That was the intent of the ACA’s authors, the understanding of the congressional majority that voted to pass the bill, and the wish of the president who signed it into law.  A decision in favor of the plaintiffs would not just go against the law’s intent; it would result in millions of Americans losing their health insurance.

Each person included in the millions of Americans who would be affected by a ruling in favor of the plaintiffs serves as a reminder that health care must not be a privilege reserved for those who can
afford it. Health care is a right that must be available to all, regardless of socioeconomic status.

That core belief in the importance of access to health care for all is reflected in Jewish tradition. Maimonides, an ancient Jewish scholar, listed health care as the most important communal service that a city has to offers its residents (Mishneh Torah, Hilchot De’ot IV: 23). In these communities, doctors were required to offer reduced rates for poor patients, and when those reduced rates were not sufficient, communal subsidies were established (Responsa Ramat Rahel of Rabbi Eliezer Waldernberg, sections 24-25).

Since the Affordable Care Act was passed, Americans who have benefitted from the law’s strengthening of protections for young adults, those previously without health insurance, and all who have taken solace in the knowledge that they are no longer being left out in the cold when it comes to caring for their health have been on the defensive. It is time to end the barrage of Congressional votes to repeal the law and also time for the Supreme Court to make clear that the ACA is and will continue to be a reality Americans can depend upon.

Barbara Weinstein is the associate director of the Religious Action Center of Reform Judaism.

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