U.S. Capitol | Susan J. Demas
WASHINGTON — Democrats in Congress are warning that a looming court decision could upend the Affordable Care Act and leave millions of Americans without health insurance.
The case — argued Tuesday before the U.S. Court of Appeals for the Fifth Circuit in Louisiana — has put the fate of the Affordable Care Act on the line again. The lawsuit is on appeal after a District Court sided with the plaintiffs and struck down the entire health care law as unconstitutional. The Trump administration has declined to defend the former President Obama-era law.
Health care experts told lawmakers on the U.S. House Oversight and Reform Committee Wednesday that if that ruling stands, it could wipe out programs created by the 2010 health care law and shake the entire health care system. The appeals court is expected to rule in the coming months.
“If this prevails and the entire Affordable Care Act is struck down, there will be catastrophic implications for millions of Americans in the entire U.S. health system,” U.S. House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) said at the hearing on the issue. “I have often said that voting for the Affordable Care Act was the most important vote of my career.”
Almost 20 million people nationwide who get health coverage through programs created under the law could lose coverage if the act is repealed, according to an analysis from the Urban Institute, including 720,000 people in Michigan.
Repeal of the law could hit Michigan especially hard, according to U.S. Rep. Rashida Tlaib (D-Detroit). Michigan is ranked third in the nation for areas with a shortage of primary health care professionals for the population — meaning some people have to travel to receive health care coverage.
“The Trump administration’s refusal to defend the ACA threatens to widen the existing health care gaps and make it even harder for Americans to access care if they need it,” Tlaib said. “On our road to Medicare for all — crossing my fingers — we must continue to work to close our health care gaps and expand vital care for all Americans, and not dismantle it.”
Casey Dye, of Monroeville, Pa., testified at the hearing that the ACA has helped keep her family afloat. Her family relies on Medicaid for the weekly therapy sessions her 10-year-old daughter needs to address her speech disability.
“If you cut Medicaid, you are going to knock down her only chance of being a productive member of society,” Dye said.
Pennsylvania Insurance Department Commissioner Jessica Altman said in a letter to the committee that if the ruling stands, it could create chaos in the health insurance market and higher premiums in Pennsylvania.
Eliminating the ACA could topple a host of health care provisions, including protections for people with pre-existing conditions, coverage for young adults on their parents’ health care plans through the age of 26, maternal care benefits, and even requirements for calorie counts on menus.
A group of red states filed the original challenge, Texas v. the United States, in February 2018, after Republican-led efforts to repeal the law in Congress failed. Some legal scholars thought the lawsuit would not go far, but U.S. District Court Judge Reed O’Connor sided with the plaintiffs in his ruling last December.
The lawsuit centers around the individual mandate penalty. Congress voted to scrap the penalty as part of the 2017 tax cut, and plaintiffs argue that move made the whole Affordable Care Act unconstitutional. The Supreme Court had previously upheld the mandate as a valid exercise of taxing power.
The mandate still exists, but Congress lowered the penalty for not purchasing health coverage to $0.
“The mandate is not constitutional … the very thing that saved the mandate, the tax, which is zero, does not exist,” U.S. Rep. Chip Roy (R-Texas) said at the hearing Wednesday. “This is not because it is a policy choice, it is a constitutional question about the power of this body and if it can mandate individuals buy something in the marketplace.”
Arguing to defend the law are 20 Democratic-led states and the counsel for the Democratic-led U.S. House. Michigan Attorney General Dana Nessel announced in February that she had the support of Gov. Gretchen Whitmer in signing on.
“Health care for hundreds of thousands of Michiganders is on the line,” Whitmer said in February. “If this decision is upheld, it will make it harder for families across the state to get the care they need.”
The coalition says that Congress clearly intended for the rest of the law to survive when it eliminated the penalty.
“What does it do to the power of Congress to strike down a 2,000-page piece of legislation over the one provision? I would not want to win that way even if I thought the ACA was the creature of the devil himself,” said U.S. Rep Jamie Raskin (D-Md.). “I would not support that because it is an absolute defeat of legislative power and a corruption of the rule of law.”
Some legal experts say striking down the law could be an overreach of the courts. A bipartisan group of 55 economic scholars filed an amicus brief in support of upholding the Affordable Care Act. And legal scholars who had been on opposite sides in the fight over whether to support other aspects of the Affordable Care Act came together to file a brief arguing that it goes against decades of precedent to strike down the entire law over one claim.
“This case is not difficult, and that is what makes it different,” Abbe Gluck, director of the Solomon Center for Health Law and Policy at Yale University Law School, told lawmakers.
Gluck is one of the lawyers who worked on that brief. “One reason you see unprecedented consensus is the court is taking over congressional law-making power.”
The pending court case jolted the congressional debate on the merits of the health care law and of the possibility for a single-payer health care system. Republicans at the hearing argued health care premiums have skyrocketed and made it harder for people to get affordable care.
“It does not work and it is not going to work,” said U.S. Rep. Jody Hice (R-Ga.). “Insurance companies have fled the ACA marketplace. For every person who has benefited from Obamacare, we can find tons of people who have suffered.”
But U.S. Rep. Gerry Connolly (D-Va.) said Republicans are to blame for rising health care costs, because of changes that rolled back certain protections, like stabilization payments.
“Well, Lord Almighty, now you tell me there is a cause and effect, but it is not the ACA but it is in fact the insidious, relentless drive to gut the ACA, which Republicans could not do legislatively but could do administratively and through amendments to the law,” Connolly said.
“Making sure you have the ability to go to the doctor when you are sick and not having to worry about how you are going to pay for it, which is what the fear was for every single uninsured or underinsured American before the Affordable Care Act, is absolutely paramount and what this debate is all about,” said U.S. Rep. Debbie Wasserman Schultz (D-Fla.).
“I don’t know why my Republican colleagues think it is a strong position to argue for taking the fundamental coverage away from millions of Americans, but I wish them the best with that line of argument,” said U.S. Rep. John Sarbanes (D-Md.). “I think it is clear Americans don’t want to throw away the ACA. We can debate what we want to do from here.”
U.S. Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that Congress would restore pre-existing condition protections if the courts struck them down. But there is no guarantee lawmakers could come to an agreement on a plan after years of infighting.
Advance Editor Susan J. Demas contributed to this report.
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