Since the passage of the Affordable Care Act (ACA) back in 2010, the Supreme Court of the United States (SCOTUS) has answered pivotal questions addressing Constitutional challenges to the law. The Kaiser Family Foundation (KFF) [1] estimates that the ACA has faced over two thousand challenges in state and federal courts in that time.

In June 2012, the High Court upheld the Individual Mandate (the court rejected the claim that the individual mandate was within Congress’ commerce power, but the mandate was found to be constitutional as a ‘tax’ in National Federation of Independent Business v Sebelius, 132 SCt 2566 (2012) and Department of Health and Human Services et al. v. Florida et al). Note that in 2017, Congress eliminated the federal penalty for failure to enroll in minimum essential coverage.

The Court subsequently heard arguments in King v Burwell [2], deciding that states which failed to set up their own exchanges were in fact entitled to health insurance subsidies (basing their holding on the plain language of the statute).

Next, in California v Texas [3] the Court rejected the case itself on the grounds of standing, when States challenged the constitutionality of the entire ACA, following Congressional action reducing the individual mandate penalty to $0. Though the Court failed to address the substantive case itself, some argue that this dismissal signals the Court’s thoughts on the matter.

While not a direct challenge to the ACA (but related to the preventive care mandate), everyone is sure to remember the 2022 landmark decision reached in Dobbs v Jackson [4], where the Court upheld [5] a 2018 Mississippi law banning abortions, and overturning the long standing precedent from Roe v Wade [6]. This has created much upheaval for employers operating in multiple states, where laws regulating abortion vary greatly. 

As the end of June 2024 looms near, it would not be summer without a SCOTUS decision impacting employers. On June 13 the Court unanimously upheld in FDA v. Alliance for Hippocratic Medicine the current protocol for administering a specific drug used for abortion. Note that similar to the grounds in California v Texas, the Court here found lack of standing to challenge the FDA (arguably leaving this as a potential future challenge by a different party).

The most current challenge to watch turns on the Constitutionality of the ACA’s preventive services mandate, whereby employer group health plans must cover at 100% all costs associated with care deemed ‘Preventive’ by the USPSTF, ACIP and HRSA [7]. Interested parties have challenged the ability of these agencies to make binding recommendations based on their lack of Constitutional authority under the Appointments Clause. We are anxiously waiting to see if SCOTUS takes this case.

 [1] The KFF is an independent, nonprofit source for health policy, polling, and news

 [2] Docket No. 14-114, Opinion June 25, 2015, vote 6-3

 [3] Docket No. 19-840, Opinion June 17, 2021, vote 7-2

 [4] Docket No. 19-1392, Opinion June 24, 2022, vote 6-3

 [5] The court ruled 6-3 to uphold the Mississippi state abortion law, and ruled 5-4 that there was no Constitutional right to abortion

[6] Roe v Wade (1973) and Planned Parenthood v Casey (1992) were both overturned by the Dobbs decisions

[7] U.S Preventive Services Task Force, Advisory Committee on Immunization Practices, and Health Resources and Services Administration