So if you’ve turned on a cable news program in the last year, you’ve probably heard that the Affordable Care Act is tied up in the courts – again. But why is it back in the news this week, what’s really going on with it, and what does it potentially mean for you? Well, the answer to that question is kind of a mess, and the fact is that nobody really knows where we are or what to expect. It’s a long and messy tale, but here is what we know and don’t know.
The legality of the Act has been challenged in court since virtually before the ink was dry by multiple Republican state Attorneys General. In 2012, the US Supreme Court led by Chief Justice John Roberts ruled 5-4 that while the Congress does not have the Constitutional authority to order people to purchase health insurance, it was within Congress’s taxing authority to levy a financial penalty on people who don’t purchase it. Roberts wrote, “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” So that is the legal leg that the law has stood on since then. It’s a tax law.
Republicans in Congress have tried repeatedly over the years to repeal the act, with the House and the Senate voting no less than 50 times on the issue, and actually sending a bill to President Obama’s desk in 2016, where it predictably died with a veto. Republicans most famously tried to repeal it under the Trump administration in September 2017, where it passed the House and subsequently died in the Senate by one vote, with Senator John McCain giving his famous “thumbs down” to join two other Republican Senators in defeating the measure.
Unable to pass a full repeal, the Republican-led Congress settled for what they could get – in the massive 2017 tax bill, they sneaked in a provision that eliminated the tax penalty on people who don’t purchase insurance. The rest of the ACA, including its protections for people with pre-existing conditions, remained in effect as always. However, that move had unintended consequences.
Sensing an opportunity, several Republican state Attorneys General, led by Texas and supported by the Trump Justice Department, launched a new legal challenge to the law under a relatively novel theory. They argued that without the financial penalty, the requirement to purchase insurance cannot stand, and that that single requirement is so central to the entire law that the whole thing must be struck down. In 2018, a Federal District Court Judge in Texas agreed. Judge Reed O’Connor accepted that argument and ruled the entire ACA unconstitutional.
This predictably sent waves of uncertainly throughout the healthcare world, but legal scholars on both sides questioned O’Connor’s reasoning and did not give the decision much chance of being upheld on appeal to the 5th Circuit Court of Appeals. However, during oral arguments before a three-judge panel at the 5th Circuit last week, two of the three judges hearing the case indicated that they might be inclined to support O’Connor’s reasoning, opening the door to the possibility that the law might actually be invalidated after all.
Regardless of how the 5th Circuit rules, that ruling will almost certainly be immediately appealed to the Supreme Court, where there would be two possible courses of action. First, the Supreme Court doesn’t have to hear any case it doesn’t want to, and they could simply decline to hear the case, allowing the lower court ruling to stand and become the law of the land. Considering the stakes and the intense media scrutiny of the case, it seems pretty unlikely that they would refuse to hear it. In the more likely scenario, the Court would agree to hear the case, and there would be no action on it until the Supreme Court returns to session in October. After filing briefs and hearing oral arguments, the Court would then take several weeks or months to deliberate and make its decision. The Supreme Court historically saves big, high-profile rulings for the last couple of weeks of the term in late June or early July, so we are very unlikely to have a final decision for at least another year or so, maybe longer.
So what does this all mean for you and your health insurance coverage? For the next few months, probably nothing. If the 5th Circuit upholds the District Court’s ruling invalidating the ACA, that decision would likely be stayed (not implemented) pending appeal, meaning that nothing would change until the Supreme Court hears the appeal. This is fairly normal procedure when all parties know that the ruling is going to be appealed and the Court doesn’t want to completely flip over the apple cart and create chaos, only to be reversed on appeal.
However, if the 5th Circuit affirms the lower court’s ruling and the Supreme Court either declines to hear the appeal or upholds the decision, the impact would be widespread and immediate. Any protections for people with pre-existing conditions would be gone, meaning that you could be denied coverage altogether or pay higher premiums for your coverage if you have a pre-existing condition. Additionally, an estimated 20 million Americans who obtained health insurance after the Affordable Care Act was enacted, either through the marketplaces that were established or through the state Medicaid expansion, could lose it.
If that happens, there doesn’t appear to be any contingency plan in place. Democrats are all over the map in terms of healthcare proposals with no consensus on how to proceed, and Senate Majority Leader Mitch McConnell has said that the Republican-led Senate will not take up any healthcare-related issues before the 2020 election. Of course, that can change if the political situation becomes desperate enough for him, but for now we are left with nothing but uncertainty. As much as Republicans have dreamed of repealing the Affordable Care Act, it might be a case of the dog that caught the car, because now that they might have, they don’t know what to do with it.
Watch this issue carefully, and call your Senators and Representatives in Washington and ask them what they plan to do to protect people with pre-existing conditions if the Affordable Care Act is struck down. You deserve an answer. Do you have thoughts on it? Post a comment below and let us know what you think!
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