Originally published by Healio on April 9, 2019. Written by Janel Miller.
Legal and political battles have put the fate of the Affordable Care Act, and health care for millions of Americans, back into the spotlight and ensure that it will play a pivotal role in the 2020 elections.
Last week, the Justice Department submitted a two-sentence letter to United States Court of Appeals for the 5th Circuit in which it stated that the Court of Appeals should affirm a December 2018 Texas District Court opinion holding the entirety of the Affordable Care Act to be unconstitutional. In 2018, under then-Attorney General Jeff Sessions, “the Department of Justice declined to defend the ACA in this case but did not go so far as to argue the entire law is unconstitutional,” Amanda C. Pustilnik, JD, a law professor at the University of Maryland, told Healio Primary Care Today.
“Now, under current-Attorney General William Barr, the Justice Department has endorsed the 2018 decision and will file a brief urging the appellate court to affirm the lower court’s complete invalidation of the ACA,” she continued.
The consequences of the circuit court concurring with the district court could be dire, according to Michele Goodwin, JD, the University of California Irvine School of Law Chancellor’s professor.
“The ACA would be completely eliminated, which would also remove some of the constitutionally-protected principles within the ACA. For example, the term ‘pre-existing’ would become whatever insurance companies want it to be, such as a second pregnancy, a recurrence of cancer, or other similar medical scenarios,” she said in an interview.
Robert Greenwald, JD, faculty director of the Center for Health Law and Policy Innovation at Harvard Law School, concurred with Goodwin on the consequences of the ACA repeal.
“If the lower court’s decision is affirmed, it would topple the entire ACA, including provisions entirely unrelated to the individual mandate such as the expansion of the Medicaid program. This would do untold damage to our health care system. It would leave over 20 million additional people uninsured,” he said in an interview.
Goodwin said historically United States Court of Appeals for the 5th Circuit usually leans conservative when rendering decisions, but that does not necessarily mean history will repeat itself.
Greenwald said he was “cautiously optimistic” the United States Court of Appeals for the 5th Circuit will keep ACA in place, since the district judge’s ruling has no legal footing to stand on.
“The Texas decision flies in the face of the severability doctrine that requires judges to leave what Congress did as undisturbed as possible. Congress could have eliminated any other part of the ACA in addition to the mandate or all of the ACA, but chose not to. The ACA has survived many challenges. This brief is not going to be the instance that takes the ACA down,” he said.
Many conservative legal analysts and the Republican Attorneys General of Montana and Ohio have criticized the legal underpinnings of the Texas District Court ruling, and have filed amicus briefs with the United States Court of Appeals for the 5th Circuit opposing the decision, according to NBC News.
However the Court rules, appeal to the Supreme Court is likely, where the ACA would face a more conservative bench than it faced in previous decisions.
“Chief Justice John Roberts has already presided over two cases in which a majority of the court held the individual mandate to be constitutional. Neither Justice Roberts nor the two new justices, Neil Gorsuch and Brett Kavanaugh, believe it is the role of judges to legislate from the bench,” Pustilnik said. “Perhaps these justices will resist being used as a tool in the political strategy of repeal and replace, which is the job of Congress, not the courts.”
Medical societies respond
The Justice Department’s action prompted many medical societies to renew their concerns about the potential fallout from a complete repeal of the ACA without replacement legislation in place.
The AMA, American Academy of Family Physicians, ACP, AAP and the American Psychiatric Association collectively filed an amicus brief with the Court of Appeals “in defense of significant coverage gains and key patient protection provisions of the ACA,” according to a press release.
Barbara L. McAneny, MD, AMA president, said that the district court ruling being upheld “would wreak havoc on the entire health care system, destabilize health insurance coverage, and roll back federal health policy to 2009.”
These societies argued that the District Court decision would no longer allow children to remain on their parents’ insurance plans until they turn 26 years of age, would allow insurance companies to generate higher profits at the expense of coverage and payments for services, would eliminate need-based subsidies as well as federal funding for Medicaid expansion and Medicaid eligibility expansion and would reinstitute annual and life-time dollar limits.
The American Cancer Society Cancer Action Network, American Heart Association, American Liver Foundation, American Lung Association, Arthritis Foundation, COPD Foundation, Crohn’s & Colitis Foundation and National Psoriasis Foundation were among 26 societies that issued their own statement that expressed concern if the district court decision was upheld.