A coalition of 17 Democratic attorneys general took the first step in launching an appeal to overturn the decision by a federal judge in Texas who ruled in late 2018 that the entire Affordable Care Act was unconstitutional.
The coalition, led by California Attorney General Xavier Becerra, on Jan. 3 filed a notice of appeal with the U.S. Court of Appeals for the Fifth Circuit in New Orleans.
"The wheels start turning as of now," Becerra told reporters. He noted that the next step would be for the appeals court to lay out a schedule for when the appeal filing and responses would proceed.
On Dec. 14, 2018, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled that when congressional Republicans zeroed out the ACA's tax penalty for the individual mandate last year under tax reform, it rendered the remainder of the 2010 healthcare law unconstitutional.
A number of legal experts — conservative and liberal — have said they do not think the Fifth Circuit will side with O'Connor and doubted the Supreme Court would hear the case.
"I will be gobsmacked if O'Connor's opinion survives review in the Fifth Circuit," Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University, said in a tweet earlier this week.
The lawsuit was filed by Republican attorneys general and governors from 20 U.S. states, which have sought to invalidate the ACA.
O'Connor cleared the way on Dec. 30 for the appeal to proceed to the Fifth Circuit, though he insisted the appeals court would back his decision.
The Democratic coalition, however, said they were confident the Fifth Circuit would side with them.
The Texas judge's ruling was "a very wrong diagnosis," Oregon Attorney General Ellen Rosenblum, one of the 17 Democrats appealing the decision, said during the Jan. 3 conference call with reporters.
The idea that the tax provision could not be separated from the remainder of the ACA was "ludicrous," and an "absurd interpretation of the law," she said. The ACA "has had positive economic benefits for all states," Rosenblum added.
The attorneys general appealing the ruling noted that if O'Connor's opinion stands, it would eliminate several protections granted to Americans under the ACA, including those that prevent insurers from discriminating against people with pre-existing medical conditions.
About 133 million Americans, including 17 million children, are living with pre-existing health conditions, Becerra noted.
Polls have shown the ACA's pre-existing conditions protections are popular with Americans.
O'Connor's decision also would take away healthcare coverage from about 12 million Americans who obtained it under the ACA's Medicaid expansion. Seniors and people with disabilities enrolled in the federal government's Medicare Part D drug program would pay more for their prescription medicines if the law was wiped out.
In addition, parents would not be able to keep their adult children up to age 26 on their healthcare insurance policies, and insurers could again put lifetime caps on coverage.
The U.S. Food and Drug Administration also could no longer approve lower-cost versions of biologic therapies, or biosimilars.
Health and Human Services Secretary Alex Azar also would need to forget about some of the initiatives his agency planned to undertake to lower drug prices, given the authority it sought to use — specifically through the Center for Medicare and Medicaid Innovation — was granted by the ACA.
Rather than defending the ACA, the Trump administration sided with the Republican plaintiffs in the case, asking the court specifically to strike down the provision that protects Americans with pre-existing medical conditions.
The Trump administration, however, acknowledged in earlier court filings that the law was intertwined with the functioning of the nation's healthcare markets.
"If the federal government isn't going to do it, we'll pick up on their fumble and make sure Americans have healthcare," Becerra told reporters, adding that O'Connor's ruling "threatens the entire ACA and healthcare for every single American in one way or another."
Becerra said he hoped the appeal would move swiftly and conclude by the end of this year, setting up the possibility it could land at the Supreme Court in 2020, when the next presidential election will occur.