News

On Friday night, hand-picked, conservative, right-wing federal District Court Judge Reed O’Connor ruled the entire Affordable Care Act unconstitutional. His decision would end protections for people with pre-existing conditions, re-institute lifetime limits on coverage, implement an age tax on older Americans, end Medicaid expansion, and take away coverage from tens of millions of Americans. In short, an absolute disaster for Americans and their health care – and editorials across the country have been quick to note make this clear. Here’s a sampling:

The ruling has been criticized by editorial boards:

Los Angeles Times: “The Relentless, Wreck-It-Ralph Attacks On The Law In Congress And The Courts Should Have Ended Last Year.” “ By handing a victory to 18 Republican state attorneys general and two Republican governors, however, the judge has threatened to put healthcare out of reach for millions of lower-income Americans, undo important insurance reforms and toss out federal efforts to improve the cost and quality of care. The ruling will be appealed and has no immediate effect. Yet by issuing it before the end of open enrollment, Judge Reed O’Connor needlessly sowed confusion and, potentially, discouraged some people from obtaining coverage for 2019. That’s unforgivable. Worse yet, it could result in the entire law being tossed out by the courts. We get it — there are plenty of Republicans who don’t like major features of the ACA and resent the way it was enacted. But the relentless, Wreck-It-Ralph attacks on the law in Congress and the courts should have ended last year, when Republicans could get neither a pure repeal nor a repeal-and-replace plan through the Congress they controlled even on a simple majority vote.” [Los Angeles Times, 12/15]

Bloomberg: Republican Assurances On Pre-Existing Conditions “Were Worthless.” “‘Everybody I know in the Senate — everybody — is in favor of maintaining coverage for pre-existing conditions,’ Senate Majority Leader Mitch McConnell said in June. ‘All Republicans support people with pre-existing conditions, and if they don’t, they will after I speak to them. I am in total support,’ President Trump tweeted in October. This was during the midterm election campaign, when the Republicans were pedaling backward to convince America that they’d no intention of taking away the protections of the Affordable Care Act. Ignore the efforts in Congress to repeal the law, they told voters; don’t worry about the Justice Department joining a legal challenge to ACA, asking to strike down coverage of people with preexisting conditions at no extra cost. The assurances were worthless. A court has not only thrown out protections for preexisting conditions; it has ruled the ACA as a whole unconstitutional — including the Medicaid expansion, the requirement that large employers offer health-insurance benefits, the subsidies for low-income buyers of insurance on the health exchanges, even the exchanges themselves.” [Bloomberg, 12/16]

It has been assailed by legal experts:

Jonathan Adler and Abbe Gluck, New York Times: “This Decision Makes A Mockery Of The Rule Of Law And The Basic Principles Of Democracy.” “A ruling this consequential had better be based on rock-solid legal argument. Instead, the opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within. We were on opposing sides of the 2012 and 2015 Supreme Court challenges to the Affordable Care Act, and we have different views of the merits of the act itself. But as experts in the field of statutory law, we agree that this decision makes a mockery of the rule of law and basic principles of democracy — especially Congress’s constitutional power to amend its own statutes and do so in accord with its own internal rules.” [New York Times, 12/15]

Nicholas Bagley, Washington Post: “Don’t Mistake [This Ruling] For The Rule Of Law.” “To put it bluntly, [the ruling] makes zero sense… In perhaps the most remarkable passage in a remarkable opinion, he wrote that the 2017 Congress ‘intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA.’ Your jaw should be on the floor. On no account did Congress in 2017 ‘intend to preserve’ the individual mandate. It meant to get rid of the loathed mandate — and it did, by eliminating the penalty that gave it force and effect… So nothing changes for the time being. And nothing should change. The legal arguments in previous rounds of litigation over the ACA may have been weak, but they were not frivolous. This case is different; it’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law.” [Washington Post, 12/16]

Cristan Farias, New York Times: “Shocking Even Conservative Legal Experts, The Trump Administration Lent Its Support To The Texas Lawsuit.” “The ruling, issued late on Friday and only one day before the end of the law’s annual open enrollment period, is not a model of constitutional or statutory analysis. It’s instead a predictable exercise in motivated reasoning — drafted by a jurist with a history of ruling against policies and laws advanced by President Barack Obama… Shocking even conservative legal experts, the Trump administration fell for this spurious argument and lent its support to the Texas lawsuit — which, if successful, would render all of the marquee provisions of Obamacare, like protections for patients with pre-existing conditions, null… This all-out assault on health care is one reason Democrats did so well in the midterm elections, as voters rejected anti-Obamacare candidates at the polls. They included several lawmakers who had gleefully voted for Mr. Trump’s tax bill less than a year earlier.” [New York Times, 12/15]

And its drastic consequences have been made clear:

Jonathan Gruber, Boston Globe: “If This Law Is Struck Down, We Will Return To The Bad Old Days Where Insurers Could Deny Coverage To Individuals Who Are Ill.” “Even though the Trump administration has significantly weakened the ACA, 17 million Americans have gained coverage through the law. Perhaps more importantly, the estimated 133 million Americans with a pre-existing condition have access to affordable coverage should they need it. If this law is struck down, we will return to the bad old days where insurers could deny coverage to individuals who are ill, or charge them many times more than the healthy. That’s not all that will be lost with a repeal of the ACA. Children will no longer be protected by their parents’ insurance plans until age 26. Insurers will be able to once again limit how much healthcare spending they cover in any year, and there will no longer be a cap on what individuals have to spend out of pocket on their medical costs. Millions of Americans who don’t read the fine print of their insurance contracts could once again buy insurance that leaves them with tens of thousands of dollars in uncovered medical bills.” [Boston Globe, 12/15]

• Gruber: “It Isn’t Just The Health Of Our Citizens That Is At Risk Here – It Is The Health Of Our Democracy.” “But it isn’t just the health of our citizens that is at risk here – it is the health of our democracy. We have a law that was first passed when Democrats controlled both houses of Congress and the presidency. It was then thoroughly reviewed, debated, and voted on when the Republicans controlled both houses of Congress and the presidency. The Republicans decided that the proper outcome was an ACA with no mandate, and the outcome of that process was a weaker but still functional ACA. If the courts overturn this outcome, it is an attack on the very process of representative government in the US.” [Boston Globe, 12/15]

Evan Mintz, Houston Chronicle: We’ll Wait To See Whether Insurance Companies Will Once Again Be Allowed To Discriminate Against People With Pre-existing Conditions Or Sell Plans That Don’t Cover Core Medical Needs.” “This district court didn’t issue an injunction, so the nation will have to wait for the inevitable appeals to see if we lose all the protections in the groundbreaking law. We’ll wait to see whether insurance companies will once again be allowed to discriminate against people with pre-existing conditions or sell plans that don’t cover core medical needs. Millions of Americans are left wondering if our nation is going to be thrust back into an age before the ACA, also known as Obamacare, when medical bankruptcies were skyrocketing and people were afraid to change their jobs for fear being denied coverage. If you’re one of these Americans, feel free to thank Texas Attorney General Ken Paxton, who led the plaintiffs in the lawsuit. Paxton — who is currently under indictment for fraud — now bears the burden of helping his fellow Texans understand what happens if the ACA is eventually struck down for good.” [Houston Chronicle, 12/16]

Derek Rapp, The Hill: This Ruling “Threatens Coverage Of Pre-Existing Conditions [And] Leaves MIllions In Jeopardy.” “Coverage for pre-existing conditions is critical for the millions of Americans living with chronic diseases, and it’s a matter of decency and existing law. Until the Affordable Care Act, people with pre-existing conditions were denied insurance coverage, charged higher premiums and offered limited benefits. Friday’s decision by a federal judge in Texas that threatens coverage of pre-existing conditions leaves millions in jeopardy a month after the topic dominated the midterm elections.” [The Hill, 12/15]

As millions of Americans go to bed tonight anxious about the future of their health care, whether this country will return to the days of discrimination against those with pre-existing conditions and denied coverage claims and surprise medical bankruptcies, Donald Trump and Congressional Republicans will continue to own every last worry.