Texas v. United States
The latest ACA lawsuit could uninsure millions and remove protections for pre-existing conditions
One of the landmark changes included in the Affordable Care Act was that health insurers could no longer turn away people with pre-existing conditions, or charge them more based on their health status. It has consistently been one of the most popular protections in the ACA, and was at the heart of the 2017 battle to repeal and replace Obamacare. Republican alternatives to the ACA continually either failed to include these vital protections or included work-arounds so individual states could choose to let insurers drop coverage or implement massive price hikes.
With the 2018 midterms looming on the horizon, Democrats are reminding voters of those threats to their health care. In particular, red-state Dems are targeting threats to pre-existing protection coverage. For Senator Joe Manchin (D-WV), it’s literally in his sights:
The lawsuit that Sen. Manchin is aerating is Texas v. United States, the latest legal threat to the Affordable Care Act. The case, brought by Texas and 19 additional conservative state attorneys general and governors (Manchin’s opponent, WV Attorney General Patrick Morrissey is one of the plaintiffs), contends that the ACA is now unconstitutional after Congress’ repeal of the individual mandate penalty last year.
The individual mandate — enforced through a penalty fee for those who didn’t comply — compelled people to make sure they were enrolled in a health care plan. When the Supreme Court upheld the ACA in 2012, it ruled that the individual mandate, and the penalty for not complying, was constitutional because of Congress’ power to tax. Five years later, the penalty for foregoing coverage was removed with the 2017 tax bill, rendering the individual mandate toothless and effectively void.
Texas v. United States argues that since the Supreme Court ruled that the individual mandate penalty was constitutional because of taxation powers, now that the penalty has been removed, the mandate is unconstitutional. Furthermore, if the mandate is unconstitutional, then the entire ACA is as well. 17 million Americans could lose their health insurance as a result.
The case was complicated in June when the Department of Justice declined to defend the case, and actually wrote that it agreed with the plaintiffs on several points. The highly unusual move continued as DOJ asked the court to strike down the mandate as well as guaranteed issue and community rating (the protections for people with pre-existing conditions). That focus is what has patient advocates worried.
Since the DOJ stepped aside, 17 Democratic attorneys general have stepped in to defend the case on behalf of the United States. Before the trial, a bipartisan group of governors wrote that the case would be in error, and Republican leaders in the Senate, including Mitch McConnell, Lamar Alexander, and Orrin Hatch all said that their intention in striking down the individual mandate was not to take away coverage for pre-existing conditions.
The question raised by the senators, that of severability, is the heart of the case. The plaintiffs argue that the individual mandate is inseverable from the ACA, which is why they can turn from “the mandate is unconstitutional” to “the ACA is unconstitutional.” While this view that the mandate was essential to the ACA was held by Congress when drafting the law, that view changed when… Congress severed it, when they removed the mandate penalty in 2017. Even Jonathan Adler, the author of the previous lawsuit against the ACA to reach the Supreme Court, thinks Texas v. United States is ridiculous.
However, as oral arguments for the trial began in September, it looks like the judge may rule in favor of Texas, and issue an injunction that would halt the ACA. Judge O’Connor’s decision is coming soon, and could lead to chaos in health care. If he issues an injunction, he could strike down anything from just the mandate to the entire ACA. The judge also must decide if an injunction covers the 20 plaintiff states or the entire country, gutting coverage for nearly 20 million people. If the decision comes during the insurance open enrollment period, the health care market would be a confusing disaster. (Republicans also worry they may end up taking away health insurance for voters right before the midterm elections.) The decision would also lead to immediate appeals and a flurry of counter-suits, and could ultimately place the ACA before the Supreme Court once more.
