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Thursday
Dec202018

Millions enroll in ACA coverage, despite judge’s ruling

Judge issues sweeping ruling, but ACA remains the law 

Late last week, federal court Judge Reed O’Connor issued a sweeping opinion striking down the Affordable Care Act (ACA) on legally shaky grounds. The “intensely political judge”had delayed issuing his ruling for months, raising speculation that he was doing so to help Republicans get through the midterm elections, in which health care was a top issue for voters. Then O’Connor seemed to time his ruling—the night before the last day of open enrollment, when a rush of last-minute sign-ups were expected—to inflict maximum damage on the ACA, whether his decision stands up against appeal or not.
 
The law is being defended by 17 Democratic state attorneys general. When Democrats assume control of the U.S. House of Representatives in January, they are expected to quickly pass a resolution formally joining the case. (They also plan to investigate why Trump’s Justice Department controversially refused to defend the law, a move so unusual that several Justice Department attorneys ultimately removed themselves from the case.) In the interim, “the law remains in place,” according to a statement from the White House.
 
Fortunately, the judge’s ruling had less of a dent in ACA health plan enrollment than we had feared.  Despite the uncertainty, 8.5 million Americans signed up for a health plan on HealthCare.gov during this year’s open enrollment period (November 1 to December 15). That’s according to enrollment numbers released this week by the Centers for Medicare and Medicaid Services (CMS). While this is a 4 percent decrease from last year’s enrollment, the drop was much smaller than was anticipated, considering that the Trump administration slashed outreach and navigator funding for the second year in a row and eliminated the individual mandate to have insurance.  

Those numbers don’t include enrollment from states with their own health insurance marketplaces, such as New York, where state officials announced record enrollments to date. “Despite the constant threats to the Affordable Care Act, New York’s health insurance Marketplace stands strong,” said NY State of Health Executive Director, Donna Frescatore. “More than a million consumers have already enrolled in a Qualified Health Plan or the Essential Plan during New York’s 2019 open enrollment period, proof that New Yorkers want access to high quality, affordable care that they deserve.”  New York, Rhode Island and the District of Columbia have extended open enrollment through January 31. Other states that have extended enrollment beyond the federal deadline include Minnesota (January 13), California and Colorado (January 15), and Massachusetts (January 23).

These enrollment numbers send a loud and clear message: the American people are in favor of affordable, quality health coverage made possible through the ACA.

 
Why was this such a legally dubious court ruling? 

The scale of O’Connor’s decision surprised even the most cynical observers, and the legal theory at the heart of the case is weak.
 
When Congress passed the ACA in 2010, it argued that the individual mandate to purchase health insurance was necessary for building a robust insurance pool in which low costs for a large number of healthy people could balance out expensive medical costs for a small number of sick people. Without the mandate bringing in those healthy people, Congress argued, it wouldn’t be possible to ensure that people with pre-existing conditions could get coverage at affordable prices.
 
In 2012, Chief Justice John Roberts legitimized a then-fringe right wing attack on Congress’s power to regulate under the Commerce Clause by arguing that the clause did not give Congress the authority to mandate that individuals purchase insurance. But in a twist, Roberts joined the liberals to uphold the constitutionality of the individual mandate as a taxon those who didn’t purchase insurance.
 
In 2017, the GOP-held Congress repealed the tax penalty associated with the mandate on a party-line vote, but not the actual mandate itself. Because Roberts had upheld the mandate as a tax, 20 state attorneys general led by Texas filed suit in 2018 alleging that the GOP tax bill made the individual mandate unconstitutional and, thus, all of the consumer protections that were tied to the mandate unconstitutional by extension.
 
O’Connor’s decision to grant standing to the plaintiffs in this case is itself controversial. To win standing, plaintiffs must demonstrate they are suffering harm. There’s a case to be made that the individual mandate was never a mandate at all but rather a choice between buying health insurance or paying a tax, and now Congress has simply made the tax $0. It’s hard to see who is harmed by paying a tax of $0. But even if one accepts O’Connor’s premise, his decision to look to the 2010 Congress for intent instead of the 2017 Congress makes no sense.
 
The 2017 Congress had tried repeatedly to repeal the ACA and failed each time. In passing the tax law, many of its members and Donald Trump argued that repealing the tax penalty associated with the individual mandate wasrepealing the mandate itself. Those Senate Republicans who’d opposed ACA repeal, but supported the tax bill, argued that repealing the mandate would not sabotage ACA marketplaces. In short, Congress’s intent was clear. In his opinion, O’Connor has almost laughably tried to rewrite the history that we all lived just last year. Even conservative lawyer Jonathan Adler, who was part of the 2012 legal attack, has called the current case “bananas” and “an exercise of raw judicial power.”
 
Additionally, real-world evidence has made clear that while the 2010 Congress may have been correct that the individual mandate was necessary for the creation of new marketplaces, and we know that removing the mandate makes it harder for some people to find affordable coverage, established marketplaces can stabilize without the mandate even while retaining the ACA’s full array of consumer protections. O’Connor’s decision rests on ignoring everything we now know from the last eight years.
 
Furthermore, the judge did not simply scrap the individual mandate along with the consumer protections that are tied to it, or the financial subsidies that help people purchase insurance. He threw out the entire ACA, declaring unconstitutional everything from nutrition labeling to the Center for Medicare & Medicaid Innovation (CMMI). As Kaiser Health News reported, “canceling the law in full … could thrust the entire health care system into chaos.” 
 
Yale Law Professor Abbe Gluck commented that “It’s absolutely ludicrous to hold that we do not know whether the 2017 Congress would have wanted the rest of the ACA to exist without an enforceable mandate, because the 2017 Congress did exactly that when it zeroed out the mandate and left the rest of the ACA standing. [O'Connor] effectively repealed the entire Affordable Care Act when the 2017 Congress decided not to do so.”  

Millions of people benefit from the ACA whether they realize they “have Obamacare” or not—from provisions closing the Medicare donut hole to ensuring that young people can stay on their parents’ plan until age 26 to eliminating annual and lifetime coverage limits. For women, what’s a stake includes contraceptive coverage at no extra cost, guaranteed maternity coverage and protection from being charged more than men for the same health plan. 
 
As Politico noted, “The sweeping court ruling shows how hard it is to re-litigate parts of Obamacare without harming measures that benefit virtually every American, including people who don’t even buy insurance from the Obamacare markets. Even many of the Trump administration’s own health care initiatives, like attempts to lower drug prices, hinge on legal authority derived from the ACA.
 
An unfortunate side effect of the ruling will be to give ammunition to opponents of Medicaid expansion.  As Modern Healthcare reported, "Lawmakers and hospital association leaders in states moving toward expansion, including Idaho, Kansas, Nebraska, and Utah, worry that opponents will cite the ruling as a reason not to push forward. Expansion advocates have similar anxieties in Alaska and Montana, where Republican elected officials hostile to expansion are considering whether to continue their states' expansion program."

 
Where do things stand now?

The next step for the ACA's defenders is challenging the ruling in the notoriously conservative U.S. Court of Appeals for the Fifth Circuit. And after that, the case could be headed to U.S. Supreme Court.
 
But even though there’s reason to be cautiously optimistic about the law’s prospects at both the Fifth Circuit and the Supreme Court, the history of ACA legal challenges has been fraught with frivolous cases built on far-right fringe legal theories going further than any serious constitutional scholar could have predicted. With your help, we will continue to educate the public about what the ACA means for women and LGBTQ people, and what’s at stake if it’s taken away.

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