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What Ruth Bader Ginsburg's Death Could Mean For The Obamacare Hearing Nov. 10

The death of Ruth Bader Ginsburg is a tragedy for the country, which has lost a groundbreaking legal icon, and for the many causes she championed.

It could also be a tragedy for the millions of people who depend on the Affordable Care Act for health insurance because of a lawsuit that the Supreme Court is scheduled to hear on Nov. 10.

The case, now called California v. Texas, comes from Republican state officials and has the backing of President Donald Trump. It alleges that the 2010 health care law known as Obamacare contains a fatal constitutional flaw, requiring the justices to wipe it off the books.

Figuring out how Ginsburg’s death will affect its prospects is not easy, and legal experts that HuffPost contacted Friday night cautioned that it may take a day or two to think through the scenarios.

One is that the Affordable Care Act survives without much fuss, the program goes on as it is, and nobody loses coverage. This lawsuit is so weak that even conservative legal experts who supported previous challenges think it has no basis. Several or all conservative justices might join liberals in rejecting it.

But the lawsuit has already prevailed in two lower court cases, both times because Republican-appointed judges agreed with its rationale. And without Ginsburg, who was sure to uphold the law, the odds of the Affordable Care Act surviving go down.

That is true even if Republicans don’t manage to fill her seat before the hearing. One possibility now in play is a four-four tie. If that happens, two legal experts told HuffPost, then the Affordable Care Act could become something like a zombie statute ― one that is unconstitutional but that continues to operate while litigation continues before lower court judges.

“This should make people think again before (once again) saying that an absolutely ludicrous argument had no chance of destroying the ACA in SCOTUS,” Leah Litman, a University of Michigan law professor and former Supreme Court clerk,...

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