All eyes are likely to turn to the Supreme Court of the United States now that the Fifth Circuit Court of Appeals has issued its long-awaited ruling on the fate of the Affordable Care Act.
California Attorney General Xavier Becerra, who is leading the defense of the ACA among a group of blue states in court, has said he will soon petition the high court to take up the case. "We are prepared to file a cert petition with the U.S. Supreme Court to challenge this ruling to uphold the Affordable Care Act," Becerra said last week during a press conference.
While the outcome of the case is cloudy, there are a few possible next steps for the case, according to legal experts.
The high court could pass on the case, letting it wind its way through lower courts. The court could still decide to hear the case after it has traveled through the lower courts.
Or, Becerra and the blue states could decide to forgo asking the Supreme Court to weigh in right away and opt for the case to wind its way back through the lower courts and seek out the high court after that.
All it takes is four Supreme Court justices to say they want to hear the case, or to grant certiorari. Despite a conservative majority on the court, legal experts are mixed how the court will act. Republican appointee Chief Justice John Roberts has stunned many in voting to uphold the law, albeit weakening certain elements like the Medicaid expansion.
"Maybe the four liberals will roll the dice. After all, Chief Justice John Roberts has turned back two much stronger challenges to the Affordable Care Act. He’s unlikely to endorse a lawsuit this silly," Nicholas Bagley, a health law expert and law professor at the University of Michigan wrote for the Atlantic.
And waiting could be risky, Bagley noted: Two liberal justices are in their 80s, and "President Trump would replace them with hard-liners if given the chance," he wrote.
Becerra and the blue states defending the ACA are likely considering that issue as they consider strategy for asking the Supreme Court to step in now, Bill Jordan, chair of Alston and Bird's healthcare litigation group, told Healthcare Dive.
Also, pushing the issue during an election year by asking the Supreme Court to step in could be favorable for the Democrats who took back the House thanks to campaigning on healthcare issues.
"The [blue state] AGs want to keep it in the forefront because when you look at the polling, the polling has 52-53% for Obamacare," Jordan said.
The sweeping law is still in place for now, regardless. If it is eventually overturned, coverage gains for about 20 million Americans would be rolled back, along with protections for people with pre-existing conditions and essential benefits like maternity and preventive care.
And no matter what happens, the ACA will certainly be the backdrop on presidential candidate debate stages. If the high court does not act quickly, the election next year could drastically change the landscape. A Democrat in the White House would surely move to shore up and possibly expand the ACA.
If the Supreme Court decides to take the case, it's less likely they would do so during the current term, Katie Keith, a lawyer and health policy expert at Georgetown University, wrote for Health Affairs. If that's the case, it pushes a decision past the 2020 election.
"However, the Court has broad discretion and could allow for expedited briefing to allow the case to be considered this term. The Justices may want to hear the case this term in light of the significant uncertainty created by the litigation," Keith said.
Without the Supreme Court intervening, Judge Reed O'Connor, who issued a lower court ruling calling the law unconstitutional based on elimination of the tax funding parts of the law, will have to comb through the landmark health law and explain what is severable (or not) from the ACA, as the appellate court did not answer that key question. Instead, it sent that question back to his court to provide more analysis on which parts may be able to stand on their own.
"The district court opinion does not explain with precision how particular portions of the ACA as it exists post-2017 rise or fall on the constitutionality of the individual mandate," the Fifth Circuit majority wrote in their opinion.
Remanding the case to the lower court means "more years of litigation as we await a new district court decision, another appeal to the Fifth Circuit, and an eventual return to the Supreme Court," Keith said.
Still, prolonging the case — possibly for years — was viewed as a positive for payers, particularly in the short term. Analysts said the federal appeals court decision actually may be the best-case scenario for payers.