An unanswered question about challengers to the Affordable Care Act could throw a wrench into proceedings that threaten to derail the law, health lawyers tell Healthcare Dive.
Two Texas men who are plaintiffs in the lawsuit challenging the health law's constitutionality argue that the ACA's individual mandate forces them to buy expensive insurance they don't want. But it's unclear what insurance coverage, if any, John Nantz and Neill Hurley currently have. The case is now being considered by the Fifth Circuit Court of Appeals, which heard oral argument on various issues Tuesday.
At the appeals court hearing this week in New Orleans in front of a three-judge panel, two Republican-appointed judges aggressively challenged Democrats defending the law, asking why Congress doesn't fix the problems with the ACA. The lone Democratic-appointed judge asked no questions.
After the argument, some legal experts said the outlook wasn't good for supporters of the law.
When the suit, led by Texas and other red states was filed in 2018, Nantz and Hurley, who are self-employed, said they were both enrolled in ACA bronze plans. But, when asked by a reporter Tuesday whether they still had those plans, their lawyer refused to give a direct answer.
"I'm going to respect the privacy of my clients by not discussing in any more detail their current health situation or current access to care or insurance," Robert Henneke of the Texas Public Policy Foundation and the lawyer representing the two individual plaintiffs, said during a Tuesday call after oral argument in New Orleans.
The men claim the individual mandate — even though the financial penalty has been zeroed out — forces them to buy expensive insurance and divert resources they would have otherwise invested in their businesses.
But if they no longer have minimum essential coverage, such as an ACA marketplace plan, that raises serious questions about whether they have standing in the case.
And if they don't have standing, they don’t have any basis to maintain their suit against the government over the ACA and that could threaten the lawsuit altogether, legal experts say.
The Texas men are the "linchpin" in the case, Katie Keith, a lawyer and health policy expert at Georgetown University, told Healthcare Dive. Without the individual plaintiffs, it may be harder for the plaintiff states to prove an injury, she said, noting it's easier for individuals to explain how they're harmed by the individual mandate.
Whether the two individuals still have bronze plans didn't play a part in Tuesday's arguments before the Fifth Circuit.
Could the case be moot?
The California Attorney General's office didn't comment on the men's insurance status or whether they would consider filing a motion in court to have it addressed. Douglas Letter, the attorney representing the House of Representatives, similarly didn’t respond to a request for comment.
To bring this potential issue to light this far into the case, attorneys would have to file a suggestion of mootness, University of Michigan law professor Nicholas Bagley told Healthcare Dive. Such a filing essentially asks the court to toss the entire suit out.
The individual plaintiffs played a critical role in the lower court's ruling, which led to Judge Reed O'Connor declaring the entirety of the law unconstitutional. O'Connor’s ruling focused solely on the Texas men, not the plaintiff states.
"The red states have a back-up argument, but O'Connor didn't rule on it. Instead, he held that he could resolve the case because the two individuals had standing," Bagley said.
Accordingly, their insurance status could be a problem for the entire case.
"His clients may have had standing at the time they filed suit," Bagley said. "But if they have since ditched their bronze plans, the case has become moot: there's no live controversy over what the mandate does or doesn't require them to do in the future."
Even if there is a problem with the individuals' standing in the case, the states can show they have been injured by the individual mandate, the attorney for the plaintiff states said during oral arguments on Tuesday.
"The individual plaintiffs are plainly injured … and that’s enough for this court to proceed," Kyle Hawkins, solicitor general of Texas and lead attorney for the plaintiff states, said Tuesday. "But if I were wrong about that, it's important to note that the states have standing in their own right because the Affordable Care Act causes the states a classic pocketbook injury."
Jonathan Adler, a law professor at Case Western Reserve University, told Healthcare Dive a similar issue came up during King v. Burwell, another challenge to the ACA focusing on tax credits, but the court didn't need to address it because one of the plaintiffs maintained standing — "and you only need one."
A ruling from the appeals court is expected later this year, and the case is likely to end up before the U.S. Supreme Court.