The battle for healthcare
Could an unknown Texas judge be the catalyst to overturn the Affordable Care Act (ACA)? With the whirlwind of the Holiday season and the daily distractions of the Trump Administration, you may have missed a December ruling by Judge Reed O’Connor which struck down the landmark ACA legislation. The decision is expected to be appealed and will most likely be decided by the Supreme Court. Depending on the outcome, this case will either be a blip in the ongoing healthcare debate, or it will throw our Nation’s healthcare system into chaos.
Twenty Republican State Attorneys General challenged the constitutionality of the ACA legislation in the Texas court based on the individual mandate to buy health insurance. Judge O’Connor agreed with their reasoning. The crux of his decision centered on the health law’s requirement that people either buy health coverage or pay a tax penalty. That tax penalty was eliminated when Congress reduced the amount to zero in the tax legislation passed last year. Once the tax penalty was eliminated, the so-called “individual mandate” was unconstitutional, and the entire law had to be thrown out according to the Judge. The Judge further reasoned that the “myriad parts” of the law are interconnected. Therefore, without the mandate, the rest of the law comes crashing down.
The President was quick to praise the ruling. “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster," President Trump tweeted. "Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!" In a second tweet, the president declared the ruling to be "great news for America!"
Not everyone was as jubilant as the President. “Today’s ruling is an assault on 133 million Americans with pre-existing conditions, on the 20 million Americans who rely on the A.C.A.’s consumer protections for health care, [and] on America’s faithful progress toward affordable health care for all Americans,” Xavier Becerra, California’s attorney general, said in a statement, according to The New York Times. In addition, a coalition of Democratic State Attorneys General indicated that they will fight the ruling in court. This is because the Justice Department, in an unusual decision, indicated in June, 2018 that they will not defend the ACA in court.
What will happen if the ACA is overturned? When Congress was debating repeal of the ACA in 2017, a Congressional Budget Office (CBO) report concluded that 17 million people would lose insurance coverage the first year after the ACA was dismantled. CBO analysts also predicted insurance premiums would jump by 25 percent during that first year with 32 million people losing insurance coverage after a decade.
In addition, many popular provisions of the ACA would be eliminated. Here are just somein order of their popularity, according to the Kaiser Family Foundation's November tracking poll:
Young adults can remainon their parents' health insurance policies until age 26: 82% of the public supports this, including 66% of Republicans.
Subsidies for lowerand moderate income people:81% support this, including 63% of Republicans.
Closing the "donut hole"so there's no gap in Medicare prescription drug coverage: 81% like this, as do 80% of Republicans.
Eliminating costsfor many preventive services: 79% support this, as do 68% of Republicans.
Medicaid expansion:77% like it, as do 55% of Republicans.
The list goes on,but notably, further down but still very popular: 65% of the public supports protecting people with pre-existing conditions, as do 70% of Democrats, 66% of independents and 58% of Republicans. The fact that pre-existing conditions does not top the list shows how popular all of the other provisions are.
The consumer protections, targeted by this lawsuit, are central to the ACA and transformed the health insurance landscape. Their popularity is one of the main reasons GOP lawmakers had such difficulty repealing the ACA last year.
So what is going to happen going forward? For now the ruling will not affect the current law and its activities. The Fifth Circuit of New Orleans will likely hear the appeals case in the spring. If the Fifth Circuit upholds Judge O’Connor’s decision, there is a good chance the Supreme Court will agree to hear the case in October, 2019. A Supreme Court decision would then be rendered in 2020.
Would the Supreme Court declare the ACA unconstitutional? Many legal experts say the reasoning behind the Texas Judge’s decision is flawed, especially in its insistence to throw out the entire 2010 Law because one of its provisions has been rendered invalid. Also, the Supreme Court is reluctant to strike down laws that have been in place for years and affect millions of people.
The Supreme Court in a 5-to-4 ruling has already upheld the legality of the ACA. The five justices that constituted that majority are still on the bench. However, that may not be the case in 2020 when the Justices would probably render a decision on this Texas case. One change on the Court could bring about a different outcome. One George Mason law professor stated that “the history of the ACA related litigation is filled with surprises and failed predictions by experts.”
So hold on to your hat. This is just the latest chapter in the tumultuous history of the ACA. This battle for healthcare is far from over.
Tom DeLoe is Vice Chair of Democracy for America and is a Gettysburg resident.