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Much of the financial and legal muscle behind King v. Burwell directly traces back to Koch Industries. (Photo: Wally Gobetz/flickr/cc)

'Cynical' Obamacare Challenge Exposes Persistent Flaw of For-Profit System

While lawsuit now before US Supreme Court has been called momentous for its potential to impact millions, it is also being criticized as cynical, unfounded, and the brainchild of moneyed interests.

Deirdre Fulton

The U.S. Supreme Court is hearing oral arguments on Wednesday in King v. Burwell, the case that could decide the future of the Affordable Care Act and the healthcare status of an estimated 9.6 million people who have purchased insurance through HealthCare.gov.

While the lawsuit has been called momentous for its potential impacts, it is also being criticized as cynical, unfounded, and the brainchild of moneyed interests intent on dismantling the 2010 healthcare law.

"The King v. Burwell case is yet another reason to swiftly move beyond the failing ACA to a simpler, publicly financed, improved-Medicare-for-All system." —Dr. Robert Zarr, PNHPIn King, the court has to decide if the Affordable Care Act provides subsidies to everyone in the country who qualifies for them on the basis of income level, regardless of whether they get their insurance through a state-run exchange or an exchange run by the federal government. Thirty-four states opted for federally-run exchanges, instead of setting up their own.

The case hinges on just a handful of words in the massive bill—"through an exchange established by the state"—a phrase the plaintiffs claim is evidence that Congress intended to permit subsidies only for people who buy insurance through state-run exchanges.

But that argument is "fiction," charged author and journalist Steven Brill at Reuters this week. "Provable fiction."

Brill, who "interviewed pretty much everyone involved in the conception and writing of the law" while working on his book America's Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System, asserts:

Congress knew exactly what it wanted to do when it passed the Affordable Care Act in 2010, and contrary to the plaintiffs’ claim, that included wanting subsidies for buying health insurance on the Obamacare exchanges to be available to all citizens, even those residing in the 36 states that did not set up their own exchanges, instead relying on the exchange set up by the federal government.

At the New Yorker, legal analyst Jeffrey Toobin wrote, "the King case is notable mostly for the cynicism at its heart."

Through extensive committee hearings and debates, as well as 25 consecutive days under consideration in the full Senate, "no member of Congress ever suggested that the subsidies were available only on the state exchanges," he pointed out. "This lawsuit is not an attempt to enforce the terms of the law; it's an attempt to use what is at most a semantic infelicity to kill the law altogether."

Indeed, that is "the outcome that the plaintiffs in King vs. Burwell lawsuit are hoping for," Suzy Khimm explained for MSNBC.

"Without the subsidies available on the federal exchanges, analysts believe that only the sickest patients will be willing to buy coverage and healthier patients will exit the insurance pool," she wrote. "As a result, insurance premiums could skyrocket for everyone else who remains on the federal exchanges—what’s known in policy circles as an insurance 'death spiral'."

Experts say such a "death spiral" could jeopardize the entire law by driving up costs and making the marketplace unstable.

"If a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism."
—Steven Brill

According to critics of the legal challenge, including The Nation magazine's Katrina vanden Heuvel, that's what Obamacare opponents like the Koch Brothers have been aiming for all along.

"The Kochs and their affiliated groups spent vast sums to try to stop the Affordable Care Act from passing in the first place; to unseat those that backed the law over the course of several election cycles; and more recently, to stymie the law’s implementation," vanden Heuven wrote on Monday. "And the influence of the Koch network pervades nearly every part of the challengers' case in King v. Burwell."

In fact, "much of the financial and legal muscle behind King v. Burwell directly traces back to Koch Industries," vanden Heuvel continued. "The petitioner might be 'King' in body, but it’s Koch in heart, mind, spirit—and bank account."

 According to Physicians for a National Health Program (PNHP), which advocates for an expanded Medicare-for-All or single-payer health insurance system, all of this legal complexity could have been avoided if the ACA was not written to accomodate the private health insurance industry and other corporate, profit-oriented interests. PNHP argues that Obamacare's complexity results in legal weakness, but that a single payer system would be simple: everyone in the U.S. would be covered for all medically necessary care in a single program financed by equitable taxes.

"The King v. Burwell case is yet another reason to swiftly move beyond the failing ACA to a simpler, publicly financed, improved-Medicare-for-All system," said Dr. Robert Zarr, a Washington, D.C.-based pediatrician and president of PNHP. "Such a system would cover everyone, make care affordable, and control costs. Based on our experience with the Medicare program and the experience of other nations, we know it will work. It’s the only moral and fiscally responsible thing to do."

What's more, the implications of the lawsuit stretch beyond healthcare policy, Brill concluded.

"[I]f a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism," he declared. "For those of us who have always regarded our highest court as a national monument to the rule of law, it will be profoundly depressing."

SCOTUSblog will be live-blogging the oral arguments starting at 9:45AM on Wednesday morning.


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