Last Wednesday, May 13, 2020, was the deadline to file amici briefs at the U.S. Supreme Court on the case of The State of California, ET AL. v. The State of Texas, ET AL., a Supreme Court case that could strike down the entire ACA before this year’s election. Several dozen briefs were filed led by a collection of unusual alliances that sought to uphold the ACA.
Last year, as described in the Children’s Monitor, the U.S. Fifth Circuit of Appeals agreed with Judge Reed O’Connor of the Federal District Court in Fort Worth when he ruled that “the keystone” of the law was the individual mandate and, when Congress eliminated the individual mandate tax penalty, that it could not be severed from the entire ACA. That would mean that the whole law should be thrown out. Congress eliminated the tax as part of the December 2017 tax cut package. On December 18, 2019, the U.S. Fifth Circuit Court of Appeals in New Orleans agreed to strike down part of the Affordable Care Act provision, ruling that the requirement that people have health insurance was unconstitutional on a 2-1 decision and sent the case back to the lower court in Texas for further analysis. As a result, the U.S. Supreme Court has decided to take up the case in October.
The repeal of the ACA has been led by several Republican state attorneys general spearheaded by the Texas Attorney General. That action has been countered by several Democratic attorneys general led by the California Attorney General. Supporters of the ACA included AARP, the American Medical Association, and the Service Employees International Union, but some of the other supporters of keeping the ACA in place include unusual parties. The Montana Attorney General Timothy Fox and Ohio Attorney General Dave Yost, both Republicans, filed a brief that said in part:
“The State Attorneys General who signed this brief oppose much of the Affordable Care Act. But the task of repealing and replacing it falls to Congress, not the courts.
That allocation of responsibility ought to come as a relief to the American people. After all, Congress, not the courts, can weigh the policy arguments for and against discrete parts of the Act. And Congress, not the courts, can modify the Act with a scalpel instead of a sledgehammer, devising ways to protect those who have come to rely on the Act’s provisions—in particular, the millions of Americans who now rely on the Act’s protections for individuals with preexisting conditions.”
A brief that was filed on behalf of economists who described themselves as “53 distinguished professors and internationally recognized scholars of economics and health policy and law…[from] the Johnson, Nixon, Ford, Carter, Bush, Clinton, Bush and Obama administrations…” argued in forceful terms and in recognition of the current pandemic:
“Economic data demonstrate that the ACA remains fully effective and operational even in the absence of the individual mandate. That is true both with respect to the exchanges as well as the vast array of other health policy provisions contained in the Act. The notion that Congress would have wanted the exchanges in particular (also referred to as marketplaces) or the ACA as a whole to be invalidated in the event the mandate was struck down makes no economic sense. Even in normal times, eliminating the ACA in whole or in part would inflict broad damages on individuals, state governments, and businesses. Those consequences would be even more dramatic during the current pandemic and its aftermath, and would contribute to avoidable loss of life.”
A new analysis by the Kaiser Family Foundation released on Wednesday, May 13, 2020, indicates that because of the unemployment caused by the pandemic, “Among people who become uninsured after job loss, we estimate that nearly half (12.7 million) are eligible for Medicaid, and an additional 8.4 million are eligible for marketplace subsidies, as of May 2020.”
The ACA had been providing coverage to approximately 20 million people through the exchanges. The expanded use of Medicaid during this health and economic crisis is one of the reasons CWLA has advocated for an increase in the Medicaid matching rates (FMAP) for all fifty states as included in the House COVID-19 fifth bill. Texas, which has spearheaded efforts to repeal the ACA through the Courts, has not expanded its use of Medicaid under the ACA. The state also leads the nation in the number of uninsured children with approximately 835,000 children without health insurance, including Medicaid and the CHIP program. That represents more than 12 percent of Texas children.