Last week, an appeals court in New Orleans heard a case that could strike down the Affordable Care Act (ACA), also known as Obamacare. The case involves the decision by a Texas judge in December 2018 to declare the ACA unconstitutional. U.S. District Court Judge Reed O'Connor was siding with a group of Republican-led states that sought to proclaim the ACA unconstitutional.
Until 2018, U.S. residents who chose not to buy health insurance had to pay a penalty, a provision the Supreme Court upheld in 2012 as lawful under Congress's taxing authority. But, under the tax reform legislation that was enacted in 2018 the penalty was eliminated.
O'Connor determined that abolishing the individual mandate undermined the ACA's constitutional basis and invalidated the entire law.
Arguably, removing one part of the ACA is not necessarily reason to jettison the entire law. Initially, the Trump Administration was ambivalent about this. The Department of Health and Human Services (HHS) explicitly said some parts of the ACA might be worth keeping. Indeed, for over 18 months, HHS has consistently exploited key features of the ACA, namely its creation of the Center for Medicare and Medicaid Innovation (CMMI), also known as the "Innovation Center," to propose and implement important changes in price-setting and health insurance coverage.
But, the Trump Administration changed its position in March of this year and asserted it would no longer defend any part of Obamacare in court.
It was reported that two of three judges on the appeals court panel in New Orleans "strongly suggested" that when Congress and Trump eliminated the individual mandate, it had imperiled the entire law. Though the judges haven't made a final ruling yet, if they do rule in favor of the Trump Administration, the ACA may effectively no longer be the law of the land. Of course, such a ruling would be appealed, and ultimately the case may wind up being decided by the Supreme Court.
Texas and 18 other mostly Republican states are attempting to do what Trump and a Republican-controlled Congress couldn’t in 2017 - nix the ACA.
One has to wonder why the fate of the ACA is being left to judges instead of lawmakers. Even Judge Engelhardt, an appointee of President Donald Trump, indicated that Congress and the White House should clarify what Congress intended in 2010 and then in 2017 with respect to the ACA and tax reform, respectively.
So, courts are once again inserting themselves into politics and legislative processes, such as the ACA, seemingly without consideration of real-world consequences for Americans, nor with sufficient attention being paid to legislative intent.
Here's the problem with all this legal squabbling. Access to healthcare for millions of Americans hangs in the balance.
Consider that since 2014 more than 20 million U.S. residents have obtained health coverage through the ACA's health insurance exchanges, federal subsidies or Medicaid expansion. The exchanges must take all applicants and charge the same rate, regardless of pre-existing health conditions.
Ending the federal mandate on coverage for individuals with pre-existing conditions would directly harm individuals in states that haven't passed relevant protections. Returning to the pre-ACA era implies for some individuals with a pre-existing medical condition that they could be denied coverage altogether, or an insurer might exclude coverage of the pre-existing condition, or an insurer may offer to cover the pre-existing condition at a much higher premium coupled with hefty co-payments and deductibles.
