Latest 'Obamacare' court battle plays out in New Orleans

Henrietta Strickland
July 10, 2019

If the ruling stands, 20 million people who gained coverage since the law's passage would be without coverage.

Texas already has the highest uninsured rate in the nation.

And the same month, in a federal court in Maryland, lawyers at the Justice Department highlighted the stability of the marketplaces, or exchanges as they are sometimes called. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

But in a surprise move in March, the Justice Department said it now agrees with the December ruling that the entire Affordable Care Act should be struck down.

More than 130 million Americans with pre-existing medical conditions - including more than 5.3 million in Pennsylvania - are among those who could risk losing coverage if a lower court ruling that thrust into question the constitutionality of the Affordable Care Act ultimately prevails. Without it, Texas argues, the whole law must fall. "As leading supporters of the legislation recognized, their invalidation would throw our health care system into chaos and would deprive patients of critical benefits that Congress intended them to have".

Two Republican-appointed judges on the appeals panel hearing a Trump-backed challenge to Obamacare - a majority of the three-judge panel - suggested Tuesday that they might side with a lower court judge who said a year ago that the whole law should be struck down.

"Today's arguments seem to have gone very, very well", he said. If he does not, the Legislature next meets in January 2021.

"How do we know that some members of Congress didn't say, 'Aha!"

It was prompted by the tax bill Republicans passed in 2017. "Not only did the Legislature not do anything to improve our miserable uninsured rate, this lawsuit would uniquely make it skyrocket".

Judge Kurt Engelhardt, a Trump appointee, asked why if Congress thought the law had so many "excellent ideas" unrelated to its "linchpin" mandate, it would not have taken steps to ensure the rest of the law would not be struck down as well.

Next, Texas will have to persuade the judges that the zeroed-out individual mandate is unconstitutional.

"If you no longer have the tax, why isn't it unconstitutional?" asked Judge Jennifer Walker Elrod, who was appointed by President George W. Bush.

A California-led coalition of 16 states intervened to defend the ACA. "You've got to have a viable legal theory, and the legal theories here are so thin". But the administration made waves earlier this year when the Justice Department weighed in on the case, filing a brief saying that it agreed with the district court's ruling that the entire ACA is unconstitutional.

The lead Justice Department lawyer on the motion was Assistant Attorney General Joseph H. Hunt, whom Trump tapped past year to oversee the department's civil division. Texas, he said, created a new excuse to challenge a law it doesn't like, which was upheld in 2012.

Texas Sen. John Cornyn accused Democrats of "perpetuating this lie that we're not for covering preexisting conditions" and said Republicans should counter those assertions. "My hope is that state policy makers continue to move forward in looking past [Obamacare] and toward a state-based model that can actually provide great care for people when they get sick".

It's unclear when the panel will rule in a case that appears destined for the Supreme Court, which has reviewed the law before. "We should all work towards making quality health care accessible and affordable for all Americans - especially those living with preexisting conditions", said Heinrich. "Every American should have the right to access the health care they need to lead a healthy, productive life".

What's next: No plan for replacing the ACA has been publicly released.

The lawsuit against the ACA was brought by 20 Republican state attorneys general and governors, as well as two individuals - though the number of attorneys general is now down to 18 after Democrats took control of ME and Wisconsin in the midterm election previous year. His office did not respond to questions for this story.

Other reports by Click Lancashire

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