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Looking at the Future of Health Care Reform: King v Burwell Panel

(l-r: Professor Robert Greenwald, Rachel Gargiulo, Matthew Hellman, and Yaakov Roth)On April 20, 2015, the American Constitution Society held a panel on the King v Burwell case that is before the Supreme Court. CHLPI’s Director and HLS Professor, Robert Greenwald, served as the moderator for panelists Yaakov Roth, Matthew Hellman, and Rachel Gargiulo, all lawyers involved in the case. Each panelist provided a very different perspective on this historical case.

Yaakov Roth, one of the lawyers for the plaintiffs, was involved in the case from the very beginning of its path to the Supreme Court. He spoke about his experience and rationale to file the case as quickly as possible, which was based on the belief that the challenge to the Affordable Care Act (ACA) would have to be decided by the Supreme Court. When Jones Day filed the first motion in district court in Washington, D.C., the slow pace of the judge’s decision led to the filing of a second motion. Both motions were denied and Jones Day filed appeals to both decision. Roth noted the unusualness of the timing of the decision on the appeals; on the same exact day, they received notice that one appeal was won, while the other did not.

Roth’s actions set the stage for the work that was picked up by Matthew Hellman of Jenner & Block. Hellman represented economists who supported the government’s interpretation of the language in the ACA. He listed out the three key parts of the ACA: the mandate that everyone needs to have health insurance; language to protect individuals from discrimination for pre-existing conditions; and subsidies for individuals who otherwise couldn’t afford health insurance. Hellman explained that the language of the ACA was awkwardly written and required clarification. During deliberation, Justice Anthony Kennedy echoed Hellman’s thoughts on the ACA and said the court should try to understand what the Congress at the time of drafting meant, not what the current Congress might do going forward.

The last panelist, Rachel Gargiulo of WilmerHale, supported the case by “putting forth stories from individuals directly affected.” She acknowledged that certain concepts can seem overly abstract and it was important for the Supreme Court to see the human face of the ACA. She focused on HIV/AIDS control in Massachusetts as a case study to emphasize the importance of expanded access to meaningful health care and added that twenty-two states have unambiguously expressed support for the Government’s interpretation of the key language in their interpretation of the ACA.

The panel provided several contrasting perspectives on the ACA as well as King v. Burwell case. These differences of opinion helped illustrate to HLS students why this issue is so contested. Ultimately, the country will have an answer on the availabilities of subsidies for health care insurance as provided by the ACA when the Supreme Court delivers its decision in June or July 2015.

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