I imagine everyone is somewhat aware of the sequence of dueling court judgements that accompanied the Affordable Care Act (ACA)—lovingly referred to as Obamacare. (No, I am not being at all facetious, in my household “Obamacare” is an affectionate pet name for a law that has had a positive impact on our healthcare situation, even though we’re covered by Jeff’s employer.)
A three-member panel of the Washington DC appeals court (or at least the majority from one party), determined that only enrollees who signed on with a state-run exchange were eligible for federal subsidies. Those who signed on in exchanges established by the federal government (through healthcare.gov) were not eligible.
The ruling hinged on a phrase in one sub-section of the law that made enrollees in exchanges “established by the state” eligible for government subsidies based on means. Opponents of the law held that this wording superseded language elsewhere to the effect that if states declined to establish their own exchanges, the federal government would establish “such exchanges” (i.e. state exchanges). Two judges on the panel decided that regardless of the provision for state exchanges to be set up by the federal government, the language clearly and unambiguously meant that only enrollees in exchanges “established by the state” were eligible for subsidies.
A subsequent ruling by another court (that came so swiftly on the heels of the first ruling, the pixels on my news feed had not yet cooled) contradicted the first, saying that—taken in context with the rest of the 950 page document—the targeted words do not mean what the plaintiff thinks they mean.
Alas, the manure had already hit the media fan. Media outlets pretty universally reported on how a “three word phrase” allowed the court to “gut” (a favorite media verb) the legislation—which depends, for its efficacy, on subsidies for poorer subscribers, the individual mandate, and mandatory coverage by businesses with a certain number of employees.
I heard yet another of these analyses on NPR and realized that the media outlets were underestimating the power of the written word. This ruling which—were it allowed to stand—would cause untold hardship to millions of people and weaken the underpinnings of the ACA, actually depends for its validity on ONE word: “by”. A word composed of only two letters.
If the writers (and editors) of the legislation had chosen the word “in” instead of the word “by” when they wrote that phrase about state exchanges, opponents of the law would have had no seeming conflict to object to. Coupled with language that says state exchanges can be established by the federal government, the provision that enrollees are eligible for subsidies in exchanges established “in the states” would delink the state exchanges from their creators.
That’s a pretty amazing amount of power in just one tiny, two letter word.
So, the next time you’re reading something, take a moment to appreciate the meaning and connotations of the words used. And if you’re a writer, I implore you to take care with the words you choose. If even the smallest, meekest of words can threaten to unravel an entire 950 page piece of legislation, imagine what it might do to a mere 350 page novel?