A federal judge ruled late Friday afternoon that the Affordable Care Act is unconstitutional, a decision that is certain to be appealed.
The lawsuit, known as Texas vs. the United States of America, was filed in February by the state of Texas along with 19 other states, all led at the time by Republican governors. It argues that because the tax reform bill passed by Congress — the Tax Cuts and Jobs Act (TCJA) of 2017 — gets rid of the ACA’s “individual mandate” penalty for not having health insurance, the requirement for individuals to have health insurance is void, and because of that, the rest of the law — which they say hinges on the mandate — should be invalidated.
Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas agreed with the plaintiffs. “In NFIB [another court case involving the ACA], the Supreme Court held the individual mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress’s tax power because it triggered a tax,” O’Connor wrote. “The TCJA eliminated that tax. The Supreme Court’s reasoning in NFIB … thus compels the conclusion that the individual mandate may no longer be upheld under the tax power. And because the individual mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause — as the Supreme Court already held.”
“Finally, Congress stated many times unequivocally … that the individual mandate is “essential” to the ACA,” he continued. And this essentiality, the ACA’s text makes clear, means the mandate must work “together with the other provisions” for the Act to function as intended … Because rewriting the ACA without its “essential” feature is beyond the power of [this] court, the Court thus adheres to Congress’s textually expressed intent and binding Supreme Court precedent to find the individual mandate is inseverable from the ACA’s remaining provisions.”
So what happens now? Well, nothing for the time being, according to legal experts. “Because there’s no injunction (not yet, anyhow), the Trump administration would not be in contempt if it continued to implement the ACA,” tweeted Nicholas Bagley, JD, a law professor at the University of Michigan, in Ann Arbor. “Nor, I think, does it need to secure a stay pending appeal — though I could be wrong about that. Which means that EVERYONE SHOULD STAY CALM.”
If the ruling is appealed to the Supreme Court, it is unlikely to be upheld, said Thomas Miller, JD, resident at the American Enterprise Institute, a right-leaning think tank in Washington, in an email. “ACA opponents still don’t have five votes to take down the entire law, and may not even have four votes to knock out more than the individual mandate alone,” he said.
Miller also debunked the idea that Congress repealed just the individual mandate because they deliberately wanted to keep the rest of the ACA. “Members were voting on a reconciliation bill,” which can only deal with issues affecting the federal budget, he said. “They had no ability there either to remove, restore, or maintain any ACA regulatory provisions (aside from the tax/penalty) due to no direct … impact on the budget under recent, standard parliamentarian rulings.”
Healthcare groups were quick to denounce the ruling. “Today’s decision is an unfortunate step backward for our health system that is contrary to overwhelming public sentiment to preserve pre-existing condition protections and other policies that have extended health insurance coverage to millions of Americans,” said American Medical Association (AMA) president Barbara McAneny, MD, in a statement. “It will destabilize health insurance coverage by rolling back federal policy to 2009. No one wants to go back to the days of 20% of the population uninsured and fewer patient protections, but this decision will move us in that direction.”
“The AMA will work with patient and other health stakeholder groups in pursuing an appeal and reversal of this unfortunate decision at the district court level.”
“The judge got it wrong,” said Chip Kahn, president and CEO of the Federation of American Hospitals (FAH), a Washington-based trade group of for-profit hospitals, in a statement. “FAH believes this ruling would have a devastating impact on the patients we serve and the nation’s health care system as a whole … Having this decision come in the closing hours of open enrollment also sows seeds of unnecessary confusion. We strongly believe this should be overturned in the appeals process.”
Several major disease advocacy groups — including the American Cancer Society, the American Diabetes Association, the American Heart Association, the American Lung Association, and the National Multiple Sclerosis Society — also blasted the ruling.
“This decision threatens to resurrect barriers to health care for people with serious illnesses including cancer, heart disease, stroke, lung disease, diabetes and those with neurological conditions. If the ruling stands, anyone with a pre-existing condition could be charged more for health coverage or denied access to coverage altogether. Health plans would no longer be required to offer essential benefits necessary to prevent and treat a serious condition and could once again impose arbitrary annual and lifetime limits on coverage,” they said in a joint statement.
But not everyone was unhappy with the outcome. “This legal verdict is a reminder that Obamacare’s faulty architecture was created by Washington and we should not expect Washington to make it better,” wrote Marie Fishpaw, director of domestic policy studies at the Heritage Foundation, a right-leaning Washington think tank. “Congress should resist any knee-jerk reactions that prop up a failing health law.”
“And they don’t need to buy into the false dilemma that only Obamacare allows Americans with pre-existing conditions to get coverage. Instead, Congress should let states review their health insurance regulations and pursue innovative ways to make coverage more affordable and accessible to Americans — regardless of their income or medical status.”