- A federal judge presiding over oral arguments Wednesday in a Texas lawsuit against the Affordable Care Act appeared unconvinced of the law's ability to remain constitutional without its individual mandate, according to several media reports. Congress cut the tax penalty for the mandate to zero starting next year.
- The plaintiffs in the case, 18 attorneys general and two governors from Republican states, argued in their lawsuit that the individual mandate is now unconstitutional without the penalty. Provisions contained in the ACA say the mandate is "essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not include coverage of pre-existing conditions can be sold."
- As a "fallback position," plaintiffs also made a case for ending protections for people with pre-existing conditions in the 20 states involved in the case by 2019. The Department of Justice, which typically defends the government in court, is siding with the plaintiffs in support of eliminating of pre-existing condition protections. A decision is expected in the coming months.
The case has long been considered a tough one for the plaintiffs, who have to prove the now-gutted, zero-dollar individual mandate is an essential part of the ACA and argue that Congress' vote to eliminate the individual mandate was a vote to repeal the landmark law altogether.
Nonetheless, as we wait on the U.S. District Court to rule on whether to issue an injunction or partial injunction, ACA supporters and advocacy organizations are on their toes.
That's mostly due to conservative Judge Reed O’Connor of the Federal District Court for the Northern District of Texas, who presided over Wednesday's oral arguments. According to Modern Healthcare, O'Connor was "much tougher" in questioning the Democratic ACA defendants than he was of the GOP attorney generals.
As much was expected: O'Connor has ruled against the ACA multiple times, having issued an injunction on its abortion and transgender protections in 2016 and having thrown out ACA's imposition of a federal tax on states as a condition for receiving Medicaid funds this past spring.
The case is being defended by a coalition of 17 Democratic attorneys general, and an amicus brief was filed in June by Families USA, Community Catalyst, the National Health Law Program, the Center on Budget and Policy Priorities and the Center for Public Policy Priorities in Texas.
"Today, the U.S. District Court heard a case that is breathtaking in both the flimsiness of its arguments and the dangerousness of its impact," Frederick Isasi, executive director of Families USA, said in a statement. "Once again, opponents of the ACA are seeking to do through the courts what they failed to do in Congress."
A separate amicus brief was filed by AARP and AARP Foundation in support of the ACA.
"Before the ACA, health insurance was unavailable or unaffordable to millions of older Americans ages 50 to 64," Nancy LeaMond, AARP executive vice president, said in a statement. "Allowing insurance companies to once again charge people with high blood pressure, heart disease, cancer, diabetes or other conditions up to 10 times more than what others pay for the same coverage — or deny them coverage altogether — would be devastating to the estimated 25 million older adults with a pre-existing condition."
Following Wednesday's oral arguments, the court could make any of the four following decisions:
- End pre-existing condition protections in the 20 plaintiff states.
- End pre-existing condition protections nationally.
- Stop the enforcement of the entire ACA nationally.
- Allow the ACA to stand as-is.
The Urban Institute estimates as many as 17 million people will be left uninsured in 2019 if O'Connor rules the ACA wholly unconstitutional. The 180 million Americans who have employer-sponsored insurance or are self-insured would lose all of the ACA's consumer protections, which have kept young adults up to age 26 on their parents' plans and getting free preventative care. It would also stifle many states' Medicaid expansion efforts
Despite the GOP's attempts to end the ACA's protections for people with pre-existing conditions, that part of the law remains fairly popular among Americans across the political spectrum. The latest tracking poll from Kaiser Family Foundation found 75% of Americans believe it is "very important" to retain the ACA's protections for people with pre-existing conditions.
A decision may not come for a few months. DOJ has asked O'Connor to hold off on making a decision until after the individual market's open enrollment period ends.
The tension here is between the Judge's obvious desire to go after the ACA and the political imperative to hold at until after the midterms. https://t.co/eODnxjXXuz— Eliot Fishman (@FishmanEliot) September 5, 2018
Whatever O'Connor's decision, it will more than likely be appealed to the Deep South's conservative Fifth Circuit and possibly up to the Supreme Court, where advocates worry it may be struck down if Trump nominee Judge Brett Kavanaugh gets Congressional approval.