In High-Stakes Game of Texas Hold ’Em, Millions Could Lose Coverage

Stories that caught our attention this week

Protesters march to protect the Affordable Care Act
In a 2017 Los Angeles march, protesters registered their opposition to repealing the Affordable Care Act.

A losing hand in a high-stakes legal fight in Texas could cause a loss of health insurance coverage for tens of millions of Americans, including many with preexisting conditions. On September 5, 2018, US District Judge Reed O’Connor heard oral arguments in Texas v. United States, a lawsuit filed by 20 Republican-led states that aims to overturn the Affordable Care Act (ACA). The federal law is being defended by a group of Democratic attorneys general because the Trump administration decided not to defend it — an action that many legal experts describe as a departure from longstanding Justice Department practice. Here’s what you need to know about this latest existential threat to the ACA.

What the Plaintiffs Argued

Led by Texas Attorney General Ken Paxton, the Republican plaintiffs argued that the ACA is no longer constitutional and should be immediately struck down. Timothy Jost, emeritus professor at Washington and Lee University School of Law, explains the plaintiffs’ contentions in a post for Balkinization (a respected academic law blog led by Yale Essential Coverageconstitutional law professor Jack Balkin). The highlights:

  • The Supreme Court had held in 2012 that Congress could not constitutionally require people to have health insurance but upheld the ACA’s individual mandate as a tax.
  • In 2017, Congress reduced the tax to zero for 2019.
  • The mandate is thus unconstitutional.
  • Without the mandate, the entire ACA collapses.

The plaintiffs asked that Judge O’Connor issue a preliminary injunction setting aside the health care law while the lawsuit proceeds. If he grants that request, the judge could impose the injunction nationwide or limit it to the Republican-led states that sued. Either move would be a blow to many of the 130 million Americans who have preexisting conditions. Without the ACA’s patient protections, they could be deemed uninsurable, or only able to obtain coverage by paying much higher premiums than people without a history of health problems. Read more about the politics of preexisting conditions.

The Defendants’ Counterarguments

California is playing a leading role in defending the ACA. Earlier this year, the Trump administration announced that it agreed with the plaintiffs’ argument that the individual mandate, and therefore the entire ACA, is now unconstitutional. Since the lawsuit was technically filed against the Trump administration, a group of attorneys general from Democratic states asked to intervene in the lawsuit and defend the ACA.

California Attorney General Xavier Becerra, who leads the defense effort, said that ending the ACA “would wreak havoc in our health care system,” Kaiser Health News’ Julie Rovner reports. “We don’t believe Americans are ready to see that their children are no longer able to see a doctor or that they cannot get treated for a preexisting health condition.”

Jost, who attended the oral arguments, reports that the defendants contended that “the individual mandate continues to be a valid tax, but more importantly, that the mandate is no longer in any way essential to the continued stability of that market.” Becerra argued that granting a preliminary injunction would have dire consequences for millions of Americans, while denying the injunction would not harm the plaintiffs.

Questions from Judge O’Connor

In an exhaustive blog post for Health Affairs, legal expert Katie Keith writes, “Although it is risky to try to predict the outcome of a case from oral argument, Judge O’Connor’s questions… suggest he may be considering striking down some or all of the ACA.”

Jost came away with a similar conclusion: “The devastating consequences of his potential decision in the case before him were of no interest to Judge O’Connor, who showed no sign of having read the amicus briefs filed by virtually every stakeholder in the American health care system — doctors, hospitals, insurers, patient groups, consumer organizations, small businesses, older Americans, as well as numerous health economists and public health experts — demonstrating those consequences.”

A Lawsuit with Political Implications

With the oral arguments done, Judge O’Connor could rule at any time. Keith notes that both sides “expect any ruling to be immediately appealable,” so this is likely the beginning of a long legal battle that may end up in front of the Supreme Court.

Meanwhile, Texas v. United States has become a focal point in November’s midterm elections, now less than two months away. Support for the ACA is higher now than it was during the presidency of Barack Obama, the law’s biggest supporter. The Washington Post’s Philip Bump writes that after the ACA passed, it was generally viewed more negatively than positively by the public. But once Trump was elected and the GOP’s persistent efforts to repeal the health law were no longer up against Obama’s veto, the popularity of the ACA increased significantly. A Kaiser Family Foundation tracking poll found that 43% of the public had a generally favorable opinion of the ACA in November 2016. Since then, public opinion of the health law has trended upward, and last month 50% of Americans had a generally favorable opinion.

On Another Note: What the Census Tells Us About the Uninsured

This week, the US Census Bureau released new data showing the number of uninsured Californians dropped by nearly 60% since full implementation of the ACA in 2014. That’s the biggest decline achieved by any state. The highest uninsured rate of any state (17.3% in Texas) is more than six times the lowest rate (2.8% in Massachusetts). See the full report.

Are you keeping up with Texas v. United States? Tell me what you think about each side’s arguments. Tweet at me with #EssentialCoverage or email me.