Azar case continues to prolong ACA uncertainty

About Joanne Kenen

Contributing editor to Politico Magazine and former health care editor-at-large, Politico, Commonwealth Fund journalist in residence and assistant lecturer at Johns Hopkins Bloomberg School of Public Health.

FPhoto: Thomas Anderson via Flickr

The Supreme Court has declined to take up, on an expedited basis, Texas v. Azar, the conservative states’ lawsuit against the ACA. That doesn’t mean that the case — which argues for scrapping the whole 2010 health law now that the individual mandate penalty has been zeroed out — will never reach the Supreme Court. But it’s now highly unlikely that the high court will rule during President Donald Trump’s re-election campaign.

The Supreme Court doesn’t usually take up cases until they’ve worked their way through the lower courts. But as we told you recently, it wasn’t 100 percent clear that they’d follow that tradition in this case.

In December 2019, the Fifth Circuit Court of Appeals voided the ACA’s individual mandate. But it sent the rest of the case back to the District Court to reconsider. The lower court earlier had ruled that the whole law should be scrapped because of the mandate.

The states seeking an expedited ruling had argued that the nation — including health care providers and payers — need to end the constant uncertainty about the health law. Of course, they also may have been eager to get the case in front of the current court, which has upheld the ACA twice, rather than risk an even more conservative makeup in the future if President Trump wins re-election.

So, what comes next? Here are the two most likely pathways:

One is that the court will grant cert. In other words, the Supreme Court would take the case in late 2020 with a decision expected by the summer of 2021. Alternatively, the case would proceed on its current path back to the federal District Court in Texas, then another appeal to the Fifth Circuit and eventually back to the Supreme Court. That could take two or three years, which creates a lot more uncertainty but in many ways, the ACA markets and the insurers have already adjusted to this possibility. Uncertainty, in fact, has become a certainty.

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