A cadre of Democratic state attorneys general and Democrats in the U.S. House of Representatives want the U.S. Supreme Court to decide the fate of the Affordable Care Act before the 2020 elections.
In a Dec. 18, 2019, ruling, the U.S. Court of Appeals for the 5th Circuit in New Orleans declared the ACA's individual mandate unconstitutional.
The group of 20 Democratic attorneys general, led by California's Xavier Becerra, and lawyers for the House of Representatives asked the Supreme Court in Jan. 3 petitions for an expedited review of the 5th Circuit's ruling.
While the appeals court did not invalidate the entire law, the situation created uncertainty for its future. The 5th Circuit returned the case to the lower district court in Texas to decide if other provisions in the 2010 healthcare law could survive without the individual mandate.
California Attorney General Xavier Becerra
"The actions of the lower courts have cast doubt on hundreds of other statutory provisions that together regulate a substantial portion of the nation's economy," Becerra and the other attorneys general stated in their brief. "States, health insurers and millions of Americans rely on those provisions when making important — indeed, life-changing — decisions. The remand proceedings contemplated by the panel majority would only prolong and exacerbate the uncertainty already caused by this litigation."
The lawsuit was brought by a coalition of Republican state attorneys general and governors, who argued that when Congress zeroed out the ACA's tax penalty for the individual mandate under the 2017 tax reform bill, that action rendered the remainder of the healthcare law unconstitutional.
Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas agreed, saying in his December 2018 ruling that the individual mandate penalty could not be severed from the rest of the law.
At stake are a number of programs and protections created by the ACA — former President Barack Obama's signature legislative achievement.
Most notably, Americans with preexisting medical conditions could be put at risk of losing their insurance coverage, since those safeguards against discrimination were put into place under the ACA.
Also under threat is the ACA's Medicaid expansion, the loss of which could result in about 13 million Americans with low-income having to seek other insurance coverage.
The 2010 health law also lets parents keep their adult children up to age 26 on their healthcare insurance policies — an option that could be lost if the entire ACA was invalidated.
In addition, seniors and Americans with disabilities enrolled in the federal government's Medicare Part D prescription drug program could pay more for their medicines if the provision that closed the so-called doughnut hole does not survive.
Also at risk is the U.S. Food and Drug Administration's pathway to approve lower-cost versions of biologic therapies, or biosimilars.
The premium tax credits that help millions of Americans pay for their individual health plans also could go away.
"This dangerous repeal case jeopardizes the lives of our families, neighbors and millions of Americans who rely on the ACA for their healthcare," Becerra said in a Jan. 3 statement. "We're asking the Supreme Court to swiftly resolve this repeal lawsuit for the sake of saving lives and ending uncertainty in our healthcare system."
The Supreme Court has already twice upheld the ACA — in 2012 and in 2015.
U.S. Supreme Court
Lawyers of all political stripes have derided the 5th Circuit's conclusion, noted University of Michigan Law Professor Nicholas Bagley.
When Congress zeroed out the individual mandate's tax, it did not revisit the Supreme Court's 2012 ruling where it determined lawmakers had given Americans a choice in the 2010 health law to either buy insurance or pay a penalty, Bagley wrote in a Jan. 1 commentary in the New England Journal of Medicine.
"The appeals court is bound by the Supreme Court's conclusion, whether it likes it or not," he wrote.
Bagley doubted the same Texas judge who ruled in December 2018 would decide the case any differently on its remand.
In that opinion, O'Connor said the law was not severable, meaning that if the individual mandate was unconstitutional, the entire law was invalid.
While the 5th Circuit told O'Connor to use a "finer-toothed comb" on his second review of the case, the appeals court did not provide any guidance about how fine-toothed that comb should be, Bagley said.
"It was even open to the possibility that the judge could reach exactly the same conclusion," he said.
Bagley noted that it takes four votes by the Supreme Court to hear a case but five to expedite it. If the court takes up the case, it could rule by the end of its term in late June, well ahead of the November 2020 elections.