After appeals court arguments, ACA back in limbo

Joanne Kenen

About Joanne Kenen

Joanne Kenen, (@JoanneKenen) the health editor at Politico, is AHCJ’s topic leader on health reform and curates related material at healthjournalism.org. She welcomes questions and suggestions on health reform resources and tip sheets at joanne@healthjournalism.org. Follow her on Facebook.

The oral arguments in the Texas v. United States lawsuit aiming to overturn the Affordable Care Act did not go well for backers of the health law on Tuesday. Two of the three judges on the Fifth Circuit Court of Appeals seemed ready to scrap at least pivotal chunks of the ACA.  (Here’s a wrap from AP.)

But what comes next – or when it happens – is still a guessing game.

The court could strike all of the ACA, strike none of the ACA, strike portions of the ACA (including protections for pre-existing conditions), or throw the whole case out. Under almost any imaginable scenario, there will be an appeal, perhaps to the full Fifth Circuit, and to the Supreme Court.  This will go on a while, quite possibly until the end of the Supreme Court session in late June 2020 – just in time for the presidential nomination conventions.

If you want to hear the full oral arguments, here’s the  link. And here is a link to a version with the volume boosted, thanks to AHCJ member Jim Unland. (Here and here are our two most relevant overview blog posts on the case. )

The oral arguments were covered widely, but here’s one really interesting take from Noam Levey of the Los Angeles Times. Writing just before the New Orleans proceedings, Levey noted that the Trump administration is telling “one court Obamacare is failing and another it’s thriving.” He wrote:

As they push a federal court to repeal the Affordable Care Act, Trump administration lawyers are arguing the law is no longer workable because Congress eliminated a penalty on people who don’t have health insurance.

But for months, senior administration officials and lawyers have been making the exact opposite case in other settings, a review of government reports, court filings and public statements made by Trump appointees shows.

In fact administration officials, including White House economists, this year repeatedly have hailed the strength of insurance marketplaces created by the 2010 law.

And in stark contrast to their claims in federal court in New Orleans, they have stressed that the 2017 legislation eliminating the so-called mandate penalty has had little to no impact on markets and consumers, let alone on the broader healthcare law, often called Obamacare or the ACA.

HHS and the White House, accused by Democrats of “sabotaging” the ACA, have been citing fairly stable enrollment and lower premium increases in the ACA exchanges, and arguing that the elimination of the mandate penalty had scant impact. But in the Texas case, they’ve depicted zeroing out the mandate as the death knell for the health law. It’s a good, well-reported, well-documented easy read by Levey, one of the best health journalists in the business.

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