A federal appeals court in New Orleans struck down a central provision of the Affordable Care Act, ruling in a 2 to 1 decision on Dec. 18 that the requirement that people have health insurance was unconstitutional. The ruling was based on the fact that Congress had eliminated the tax penalty which was instituted in the law to enforce it.
But the Fifth Circuit Court of Appeals judges did not rule on whether the ACA law, also widely known as Obamacare, is itself unconstitutional. The judges instead sent the case back to the lower Texas Federal District Court Judge Reed O’Connor, who initially attempted to invalidate the entire law, instructing him to “conduct a more searching inquiry.” However the case is likely to be appealed to the U.S. Supreme Court.
A group of Republican governors and state attorneys general originally filed the case, Texas v. United States, in early 2018. The lawsuit is supported by the Trump Justice Department, which wants to overturn provisions of the ACA that require insurance companies to sell coverage to people with preexisting health conditions and not charge them more. Between The Lines’ Scott Harris spoke with Melinda St. Louis, director of Public Citizen’s Medicare for All Campaign, who talks about the Appeals’ Court ruling and the consequences for millions of Americans if Obamacare is weakened or terminated.
MELINDA ST. LOUIS: Last week’s ruling in many ways has been described as both say, arrogant and cowardly, kind of both toward the same end, which actually jeopardizes the healthcare of millions of Americans eventually and creates a lot of instability for the lives of millions of people. And I say it’s arrogant because, it upheld this kind of preposterous legal claim that the individual mandate in the Affordable Care Act was unconstitutional, even though the Supreme Court had already ruled that it was constitutional because the way that the individual mandate was conceived in the Affordable Care Act was that people had a choice whether to purchase insurance or not. And if they choose not to, then they would face a penalty. And that that counted as a tax. So the Congress has the constitutional right to impose a tax on individuals for their choice.
But then what happened was that the Republicans took away the penalty in the big tax bonanza cut bill that they passed and so they eliminated the penalty that people would have to pay and obviously the reason that they did that is that they were saying that this was no longer going to be something that people had to do because there was no penalty. Well, what this legal claim was: Now that it was no longer a tax, the law was coercing people and actually requiring people to purchase insurance, which was unconstitutional.
And of course the goal of the Republican Congress was to not have this be something that was coercing people to do so. They were basically saying because the Republicans had taken away the penalty that now it was unconstitutional and therefore that piece of the ACA — they upheld this preposterous legal argument that that’s unconstitutional.
But then the cowardly aspect of it was that then what they said was that they couldn’t decide whether that meant that the entire ACA was invalid. But instead of making a determination, they sent it back to the lower court that had already said that this is going to be completely unconstitutional, the entire law, and said that they need to go through with a fine-tooth comb and actually explain why all of the pieces should all be considered together.
And the legal term is whether it is severable or not. And so by doing that, what they did was they put off the decision potentially until after the election. So that means that the Supreme Court was much less likely to actually rule on this in an election year and therefore to get rid of the political accountability that would come depending on how it was ruled. So it was both bad for the law and then it also got rid of the potential political accountability. And that’s why it’s upsetting on both sides.
SCOTT HARRIS: What are the consequences for Americans who now depend on Obamacare – the Affordable Care Act – if this case is brought all the way to the Supreme Court and the court, now with a very strong conservative majority of justices, deems the ACA unconstitutional?
MELINDA ST. LOUIS: Well, it’s important for folks to know that for now, the ACA and Obamacare remains the law of the land. So that means that Medicaid expansion is still in place. The health insurance exchanges are still in place. There’s still a prohibition of discrimination based on pre-existing conditions.
But if, as you say, this works its way to the Supreme Court and is declared unconstitutional, this is going to have devastating impact for millions of people who have insurance because of the ACA. As we know, the ACA, the Affordable Care Act, Obamacare was an important step forward. There were 45 million Americans who did not have insurance. And then it cut that about in half. So there were about 28 million Americans who did not have insurance after the Affordable Care Act. But that’s millions of people who have achieved insurance. One of the most important aspects of the Affordable Care Act was the expansion of Medicaid for the states that actually expanded Medicaid.
And that has meant millions of people having access to healthcare that they did not have before. And we know that that has saved lives. In the United States, we have almost 30,000 people, depending on the estimates, that die every year because of lack of affordable healthcare and because they don’t have access to insurance. And so if you kick more people off insurance, what it means is that more people will die unnecessarily — the people who get kicked off of Medicaid or who no longer have access to these health insurance exchanges will lose their insurance.
And then what was one of the most important issues in the last election was this issue around pre-existing conditions. We are all going to have, likely, a pre-existing condition in some point in our lives. And it is an outrage to think that you could not afford health insurance because of some sort of pre-existing condition. And if that becomes a law of the land, again, it will have again, deadly impacts for people across the United States.
For more information, visit Public Citizen at citizen.org and Public Citizen’s Medicare for All Campaign at citizen.org/topic/health-care/medicare-for-all.
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