If Republican state attorneys general prevail in their legal bid to overturn the Affordable Care Act, patients with preexisting conditions will lose their coverage protections, and an additional 24 million Americans could become uninsured, according to testimony presented at a Feb. 6 hearing of the House Energy and Commerce Health Subcommittee.
Courtesy Ways & Means Health Subcommittee
Attorney Christen Linke Young warned legislators that upholding Texas v. United States would sow confusion in Medicare payment rules.
A ruling for the plaintiffs in Texas v. United States also would mean the ACA’s consumer protections for employer-based coverage would be eliminated, affecting more than 150 million Americans, said Christen Linke Young, an attorney and fellow for the liberal-leaning USC-Brookings Schaeffer Initiative on Health Policy.
“The ACA’s changes to Medicare would be undone, reinstating copays on preventive services and reopening the prescription drug ‘donut hole,’ ” Ms. Young testified at the hearing. “It would also create major confusion in Medicare payment, as the ACA policies that are today fully integrated into the Medicare payment rules would suddenly lack a legislative basis.”
Ms. Linke Young was one of five witnesses who testified before lawmakers about the implications of Texas v. United States, an ongoing legal case that centers on whether a part of the health care law should be severed and if so, whether the entire law should then fall.
A group of Republican state attorneys general sued over the law in 2018, arguing that, because budget legislation in 2017 zeroed out the penalties associated with the ACA’s individual mandate, the mandate is invalid. The attorneys general also argue that, if the mandate is severed, the entire ACA should be struck down.
In response to the suit, the Trump administration agreed that the mandate is unconstitutional and should be parsed. Attorneys for the administration wrote that, if the mandate is found unconstitutional, the court should also consider finding two other provisions – the guaranteed issue and community rating requirements – of the ACA invalid. Guaranteed issue refers to insurers in the individual market offering coverage to all citizens, regardless of preexisting conditions, while community rating refers to charging equal premiums to every patient, no matter their past health status. The remainder of the ACA can stand without the three linked provisions, according to the Trump administration, which refused to defend the case.
A coalition of 17 Democratic attorneys general have stepped in to defend the case.
In December, a district court declared the entire ACA to be invalid, a decision immediately appealed to the 5th Circuit by the Democratic attorneys general. In January, the circuit court froze the case in light of the federal government’s partial shutdown. The case remains on hold.
Thomas P. Miller
At the hearing, Thomas P. Miller, a resident fellow at the conservative-leaning American Enterprise Institute, testified that a 5th Circuit decision would not likely come before summer 2019, followed by a potential U.S. Supreme Court reading in 2020 – if the case gets that far.
“The probability of a Supreme Court ruling that would overturn the entire ACA remains very low, despite last December’s decision at the federal district court level reaching exactly that legal conclusion,” Mr. Miller testified. “Given the murkiness of divining legislative intent in harder cases like the ACA, challenges to the individual mandate, past and present, it’s better to conclude that, although several different severability settings are hypothetically conceivable, it remains all but certain that an ultimate Supreme Court ruling in this case will, at a minimum, follow its previous inclinations revealed in the 2012 and 2015 ACA challenges and try to save as much of the law as possible.”
If the individual mandate is ultimately severed from the ACA, the decision would have little impact on beneficiaries or function of the health care law, according to Simon Lazarus, a lawyer and writer on constitutional and legal issues.