WASHINGTON — At least five Supreme Court justices, including two members of its conservative majority, indicated on Tuesday that they would reject attempts by Republicans and the Trump administration to kill the Affordable Care Act.
It was not clear whether the court would strike down a provision of the act that initially required most Americans to obtain insurance or pay a penalty, a requirement that was rendered toothless in 2017 after Congress zeroed out the penalty. But the bulk of the sprawling 2010 health care law, President Barack Obama’s defining domestic legacy, appeared likely to survive its latest encounter with the court.
Both Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said striking down the so-called individual mandate did not require the rest of the law to be struck down as well.
“Congress left the rest of the law intact when it lowered the penalty to zero,” Chief Justice Roberts said.
Justice Kavanaugh made a similar point. “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 — the provisions regarding pre-existing conditions and the rest,” he said.
The court’s three-member liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — also indicated their support for the law. That suggested there were at least five votes to uphold almost all of it.
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