You are forgiven if you haven't heard that the Affordable Care Act is headed back to the Supreme Court. After all, the court ruled on the constitutionality of the law in 2012. That should have been the end of it.
But the ACA's opponents are nothing if not relentless.
This time, it is possible that one word in the health care law could cost millions of Americans the health insurance that the ACA helped them acquire.
Why? Because hundreds of (mainly Republican) members of Congress would happily deprive their constituents of health insurance rather than support a simple legislative fix to a law they hate.
Early in 2015, the court will hear arguments in the case of King v. Burwell. The plaintiffs argue that since the ACA guarantees subsidies to help low-income consumers buy health insurance on exchanges "established by the state," that subsidies to the people who purchased health insurance on the federal exchange (healthcare.gov) are illegal.
If the court buys this ridiculous argument, the consequences could be devastating. Only 14 states have established their own insurance exchanges; in the other 36, consumers purchase policies through the federal exchange.
According to the trusted Kaiser Family Foundation, 4.3 million Americans bought insurance on healthcare.gov, and by 2016, that total will exceed 16 million.
The ACA has three main components — the loss of any one of which can effectively kill the law. The first is a requirement that insurers cover everyone, even people with pre-existing conditions; the second is an individual mandate that brings millions of new subscribers (and their premium dollars) into the pool; the third is federal subsidies for those who cannot afford premiums on their own.
Take away the subsidies and many people will drop their insurance; insurers would raise premiums to cover the cost of all those pre-existing conditions. Higher rates will drive away more consumers. This scenario is often called the death spiral.
Congress could eliminate any threat to the law with a simple amendment to eliminate confusion about eligibility for subsidies. But it won't. The court could reject the plaintiffs' argument because a technicality does not trump the clear intent of Congress. But it may not do so.
Health law expert Timothy Jost says that the ACA is actually two separate bills, the result of then House Speaker Nancy Pelosi's strategy to get the Senate version through the House without opening it to amendments.
That second companion bill, Jost says, specifically provided for exchanges run by the federal government in states that do not have their own. Just as important, he says, the Congressional Budget Office analyses presume subsidies to customers in all 50 states — proof that Congress always intended to provide assistance to income-eligible consumers whether or not their states opened exchanges.
It's possible that even if subsidies through the federal exchange are struck down, that states like New York could continue to operate their own exchanges. But the legal landscape could be worrisome, says Wade Norwood, chief program officer for the Finger Lakes Health Systems Agency.
Many commercial insurers could drop out of the exchanges, he says, if they believe the national market will not generate the revenues they need to participate.
Moreover, he says, many of the federal and state incentives in place to lower costs by keeping patients healthier (instead of just treating people when they are sick) only work if the uninsured get insurance and sign up with a primary care practice. Throw out the subsidies, Norwood says, and you may throw out the reforms, too.
If subsidies paid through the federal exchange are killed by the court, you can be sure that many Republicans in Washington will celebrate as the people they represent find themselves without access to essential medical care.
And will the Democrats who've been running away from the president's signature legislation despite its many virtues finally play Republican-style hardball and insist on a fix? I hope so, but I wouldn't count on it.
Former D&C and City writer Mark Hare is filling Mary Anna Towler's Urban Journal space while she takes some time off.