If Republicans maintain power after the midterm elections, they have every intention of trying to repeal the Affordable Care Act again. Many in the GOP are downplaying the priority -- Republicans can't campaign on their health care ideas because it would create a public backlash --- but the party's drive to roll back the clock on Americans' health security remains quite real.
It'd be a mistake, however, to assume that this year's midterm elections are the only consideration when weighing the future of the ACA and the benefits it provides. The New York Times reports today on oral arguments that are set to begin this afternoon in an important new anti-health-care case brought by 20 Republican state attorneys general and the Republican governors from Maine and Mississippi.
The Affordable Care Act has survived numerous court battles and repeal efforts, but a new case is threatening the law's future once again. A federal judge in Fort Worth, Tex., will hear arguments Wednesday on whether to grant a preliminary injunction that would suspend the health law until the case is decided. He has also indicated that he might go straight to ruling on the merits of the case.It focuses on whether the law's requirement that most Americans have health insurance is unconstitutional, but has much broader implications.
The case was made possible, oddly enough, by Republican tax cuts. As we discussed in June, when GOP officials approved their regressive tax plan for wealthy late last year, they simultaneously zeroed out the health care law's individual mandate penalty. And that, in turn, gave several far-right attorneys general an idea: they could once again file suit against "Obamacare," arguing that the penalty-free mandate is unconstitutional, and given the mandate's importance to the system, the entire law should be torn down.
In theory, it would fall to the Justice Department to defend existing federal law, but the Trump administration, "with the approval of the President of the United States," refused. Instead, the ACA will be defended by 16 states and the District of Columbia.
So, does the lawsuit have a shot? It shouldn't. In fact, I still consider the case a Trifecta of Wrong.
1. It’s wrong on legal grounds. As Vox noted, “Many legal scholars have long thought the lawsuit, first filed in February, is spurious and that higher courts – up to and including the Supreme Court, which has upheld Obamacare against existential legal threats on several prior occasions – would not take it seriously.”
2. It’s wrong on policy grounds. Though Republicans insist they approve of the Affordable Care Act’s consumer protections, including protections for those with pre-existing conditions, the goal of the lawsuit -- and the Trump administration’s brief in the case -- is to scrap those benefits.
3. It’s wrong on political grounds. In case Republicans haven’t noticed, the health care law’s consumer protections, including protections for those with pre-existing conditions, are very popular. Health care is already the top issue for voters this election year, and Trump’s Justice Department just told the nation that it and its Republican pals are taking dramatic steps to undermine American families’ health benefits that the public already likes and has come to count on.
Regardless, the worst case scenario in this case is deadly serious. From the New York Times' piece:
If the court finds that the individual mandate is no longer constitutional and as a result, the entire Affordable Care Act must fall, about 17 million Americans would lose their health insurance, according to the Urban Institute, a left-leaning think tank. That includes millions who gained coverage through the law’s expansion of Medicaid as well as the millions more who get subsidized private insurance through the law’s marketplace. Insurers would also no longer have to cover young adults up to age 26 under their parents’ plans. Annual and lifetime limits on coverage would once again be permitted, and there would be no cap on out-of-pocket costs.If the court sides with the Justice Department and strikes down only the mandate and the law’s popular protections for people with pre-existing conditions, insurers could return to denying coverage to such people or charging them more. They could also return to charging people more based on their age, gender or profession.
Remember, this is the outcome Republicans say they want. Indeed, they filed the case in a specific Texas district in the hopes of maximizing their odds of success.
As the New York Times' report added, "Presiding over the case is Judge Reed O'Connor of the Federal District Court for the Northern District of Texas, who was appointed by President George W. Bush. The judge has previously blocked Obama-era efforts to extend medical leave protections to same-sex couples and to include gender-identity discrimination as a form of sex discrimination under the health law."
Watch this space.