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Supreme Court To Hear Case Against Obamacare In 2015


We're taking some time this week to look at what we might expect in the news in 2015, at least as much as we can anticipate. This morning, NPR legal affairs correspondent Nina Totenberg joins me in the studio to look forward to some of the big decisions, big moments that we might expect from the Supreme Court. Nina, good morning.


GREENE: So what are you looking forward to in terms of what you expect to be covering in this coming year?

TOTENBERG: Well, to begin with, we have another challenge to Obamacare to be heard this spring. This one isn't as high-profile as the last one just two years ago, but it's just as important. And it has the power, really, to gut the program.

The case centers on what some opponents of the law once called a glitch. Under the health care law, each state is to set up its own health care exchange. And if it refuses or it can't do it, the federal government steps in to set up the exchange in place of the state. As things have turned out, 36 states - two-thirds - have deferred to the federal government.

The problem is that one subsection of the giant health care law says that the tax credits and health insurance subsidies that are at the heart of the law can only be paid out by state-run exchanges. Opponents of the law contend this language means that low- and middle-income people buying insurance from the federally run state exchanges are ineligible for the subsidies and tax credits. The federal government counters that under the terms of the statute, a federally run exchange is a state exchange.

GREENE: Well, so, Nina, this so-called glitch - I mean, it was ginned up by opponents of this law who really want the law gutted or for the law to go away. If they win here, I mean, what's the implication of that?

TOTENBERG: Well, it's going to be very interesting because millions of people who've signed up for and gotten health insurance under those federally run state exchanges would suddenly have no affordable insurance. Individual insurance rates in those 36 states would skyrocket, and the individual insurance market - well, experts say it would pretty much collapse for everyone there because remember, the quid pro quo for the insurance industry was, you can't discriminate based on pre-existing conditions and in exchange, you get a much bigger pool of people to spread the risk. But suddenly in those states, there wouldn't be a bigger pool of people to spread the risk.

Now, if you have millions of people losing their insurance, you might expect Congress to fix the problem, which it could do easily with just a legislative tweak. Certainly, the insurance and health care industries would probably push for them to do that, but they'd be dealing with a Republican-dominated Congress that is completely and totally and unalterably hostile to Obamacare.

GREENE: Right, you don't see a Republican-led Congress fixing the law to make it survive.


GREENE: Well, another huge issue that has - it seems like it's been sitting on the steps of the High Court but not quite yet in the door is same-sex marriage. What do we see coming on that issue this year?

TOTENBERG: Well, to regroup here for minute, David, folks may recall that at the beginning of this term in October, it was widely anticipated that the court would review one or more cases from lower federal appeals courts that had ruled that gay couples have a constitutional right to marry.

But - surprise, surprise - the court declined to review any of those lower court decisions, leaving them in place. And the bottom line, as of now, with all these regional federal appeals court rulings in place, plus places where gay marriage has been otherwise legalized, there are now a whopping 35 states where gay marriage is legal.

GREENE: Well, has something changed that will make the court want to really weigh in here decisively in 2015?

TOTENBERG: Well, we now have what we didn't have in October - a conflict, a disagreement in the lower courts because one federal appeals court - the 6th Circuit based in Ohio - has ruled that there is not any constitutional right to marry for same sex couples. And when there's a conflict like this, the Supreme Court normally is supposed to resolve it. What's more, in all but one of the states with pending cases before the court, both sides, the winners and losers in the lower courts, are asking the court to act now.

GREENE: Well, Nina, I'm curious, if the court decides that gay marriage is up to individual states and they say essentially that the right to gay marriage is not protected by the Constitution, what does that mean in states that - you know, where lower courts have said that gay marriage is protected?

TOTENBERG: Well, that's why it's almost inconceivable to a lot of people that the court would in essence recant on this. How do you reverse course? Tens of thousands of gay couples have already gotten married in these states. And if for the sake of argument, some states were to try to make gay marriage illegal again, well, then there would be lawsuits contending that those who want to get married in the future have been denied the equal protection of the law because some people in those states have been allowed to marry. It's a conundrum, and I can't help but wonder if the court quite deliberately let the conundrum happen.

GREENE: Well, obviously, this is a big decision that could affect lives in one way or the other. But, Nina, I mean, if the court does as you're suggesting - protects gay marriage - I mean, there's a political earthquake that we could see here, too - right? - a lot of political implications.

TOTENBERG: Or non-earthquake. Most political pros think it would be a gift to Republicans. If the court does the deed, then it's not an issue in the 2016 election, and the generational split that very clearly exists within the GOP doesn't have to get played out. If, on the other hand, the court once again punts and doesn't hear the issue this term, it will be prominently front-and-center in the 2016 election campaign, at least in the primary campaign.

GREENE: When will we know if the court is actually going to act in 2015 and make a decision on gay marriage?

TOTENBERG: The earliest notification that the court would hear the case this term would be in the second or third week of January coming up.

GREENE: Nina, thanks a lot.

TOTENBERG: Thank you.

GREENE: That's NPR legal affairs correspondent Nina Totenberg. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.