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A more conservative Supreme Court appears unwilling to do what Republicans have long desired: kill off the Affordable Care Act, including its key protections for pre-existing health conditions and subsidized insurance premiums that affect tens of millions of Americans.

Meeting remotely a week after the election  and in the midst of a pandemic that has closed their majestic courtroom, the justices on Tuesday took on the latest Republican challenge to the Obama-era health care law, with three appointees of President Donald Trump, an avowed foe of the law, among them.

But at least one of those Trump appointees, Justice Brett Kavanaugh, seemed likely to vote to leave the bulk of the law intact, even if he were to find the law’s now-toothless mandate that everyone obtain health insurance to be unconstitutional.

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Kavanaugh said.

Chief Justice John Roberts, who wrote two earlier opinions preserving the law, stated similar views, and the court’s three liberal justices are almost certain to vote to uphold the law in its entirety. That presumably would form a majority by joining a decision to cut away only the mandate, which now has no financial penalty attached to it. Congress zeroed out the penalty in 2017, but left the rest of the law untouched.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that’s not our job,” Roberts said.

In the court’s third major case over the 10-year-old law, popularly known as “Obamacare,” Republican attorneys general in 18 states and the administration want the entire law to be struck down. That would threaten coverage for more than 23 million people, as well as millions of others with preexisting conditions that now would include COVID-19.

California, leading a group of Democratic-controlled states, and the Democratic-controlled U.S. House of Representatives are urging the court to leave the law in place.

The Supreme Court could have heard the case before the election, but set arguments for a week after. The timing could add a wrinkle to the case since President-elect Joe Biden strongly supports the health care law.


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