SAN FRANCISCO (CBS SF) -- Ruth Bader Ginsberg was known as a stalwart supporter of the Affordable Care Act, commonly known as Obamacare.
Now a coalition of red states is hoping to strike it down. If they succeed, tens of millions of Americans could lose their health insurance during a pandemic.
Ginsburg voted to upload the ACA in 2012, along with 3 other liberal justices and Chief Justice John Roberts.
A new challenge to the law will be heard by the court one week after the election. The group of Republican-led states has launched a lawsuit, California v. Texas, to overturn the ACA completely. It looks at the portion of the law that was repealed in 2017 - a penalty imposed on Americans if they don't have healthcare.
"The idea is that the tax reform that we did in 2017 basically made that portion of the law invalid - that you can't charge people taxes for not having healthcare - and the challengers to the law are arguing that this makes the entire law invalid," said Hadar Aviram, law professor at UC Hastings.
With Ginsburg's death, there is less certainty that the ACA will be safe.
"Because the majority to uphold the ACA in place has been pretty slim, the concern is that now that there's one less justice on the court. If a new justice is not appointed by then who's not going to support the law that makes the law fairly vulnerable," Aviram added.
If President Donald Trump succeeds in pushing a new nominee through the appointment process before the election, that person would likely not be a supporter of the ACA.
The case is making healthcare a centerpiece of the election.
"One of the interesting things to keep in mind is how this issue this pending lawsuit as well as potential challenges to Roe versus Wade are going to energize voters coming into the election," said Aviram.
There is also the scenario of a 4-4 tie, which would leave the lower court ruling in place, which declared the law invalid.
Oral arguments are scheduled for November 10th, and a decision could come in the first half of 2021.
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