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High court decision to hear ACA case could solidify health care as key campaign issue

Justices’ decision could throw health care law’s status into question heading into 2020 election

The Supreme Court said Monday it would take up an appeal of a legal challenge to the 2010 health care law, teeing up a high-profile hearing on one of Democrats’ signature issues.

The court did not say when it would hear oral arguments. Health and legal experts following the case say they expect that the court could hear the case sometime in the fall, possibly in October when the new term begins, but is unlikely to rule on it before Election Day. The experts expect the parties in the case to file briefs throughout the summer.

The justices’ decision to hear the case underscores the uncertainty surrounding the status of the health care law heading into the 2020 election and could help solidify health care as a key campaign issue. It will be the third major challenge to the law before the Supreme Court.

“It gives one more reason to be focused on the ACA,” said University of Pennsylvania law professor Allison Hoffman, an expert on health care policy, using the acronym for the law.

The decision comes after the justices said in January they would not expedite the case and hear the challenge, Texas v. California, this term, as the House and state officials defending the law had requested. 

Mandate in question

The Supreme Court will consider whether the “individual mandate,” which requires most Americans to have health insurance, is severable from the rest of the law. If the justices agree with lower courts that the mandate is unconstitutional and cannot be severed from the rest of the law, approximately 20 million people who have gained health insurance coverage since its adoption could be at risk of losing coverage.

The 5th U.S. Circuit Court of Appeals ruled in December that the mandate was invalid after Republicans effectively ended that requirement as part of the 2017 tax overhaul. The three-judge panel remanded back to a lower-court judge questions about whether the remainder of the law should stand.

That judge, Reed O’Connor of the U.S. District Court for the Northern District of Texas, struck down the law in its entirety in 2018. He said the law should not stand without the tax penalty that most people were required to pay if they could not prove they had insurance coverage. 

America’s Health Insurance Plans, an insurance industry trade group, said O’Connor’s decision to invalidate the entire law was misguided. 

“Zeroing out the mandate was never intended to wreak havoc across the entire American health care system,” AHIP President and CEO Matt Eyles said in a statement.

Top political issue

The case was brought by Texas and a coalition of Republican state attorneys general. The Trump administration declined to defend the law, prompting Democratic state officials and the Democrat-led House to intervene to defend it.

“We should all be working to improve healthcare, instead of ripping coverage away from those most in need,” California Attorney General Xavier Becerra, who is leading the law’s defense, said in a written statement. “As Texas and the Trump Administration fight to disrupt our healthcare system and the coverage that millions of people rely upon, we look forward to making our case in defense of the ACA.”

Polls have repeatedly shown health care to be voters’ top campaign issue this cycle, but the lawsuit shows a stark difference between Democrats’ health care plans and President Donald Trump’s positions. The lawsuit was a pivotal issue in 2018 congressional races, a playbook that many Democrats are seeking to replicate.

“Nearly every House Republican voted against allowing the House to intervene in this lawsuit that would protect Americans’ access to health care,” Robyn Patterson, a Democratic Congressional Campaign Committee spokesperson, said in a statement Monday. “They own this lawsuit. Now they’ll have to answer for putting the interests of insurance companies and big pharma over the health care of working families.”

Former Vice President Joe Biden sought to highlight differences between Democrats and Trump.

“This case is a stark, life-and-death reminder how much is at stake this fall and what’s on the ballot right now: Democrats must nominate the candidate whom they know can beat Trump and bring along the Senate, to ensure we can protect our health care for generations to come,” Biden said in a statement.

Shifting focus

While many Republicans continue to say they don’t support the health care law but vow to protect patients with preexisting conditions, Trump and other Republicans have sought to shift the focus to some Democrats’ support for a single-payer health care plan, which Vermont independent Sen. Bernie Sanders is pushing.

“No matter what the Supreme Court ultimately does in this case, it is clear that Obamacare has failed,” said Marie Fishpaw, director of domestic policy studies at The Heritage Foundation. “Americans deserve the greatest health care in the world. More government control over health care, like the dangerous ‘Medicare for All’ proposal, is not the answer.”

Administration officials have declined to detail how they would replace the law or respond if the Supreme Court struck down the law when asked by members of Congress.

The Supreme Court’s decision to take up the lawsuit as soon as this year could make that more difficult since the administration will have to file briefs this summer, said Katie Keith, an associate research professor at Georgetown University’s Center on Health Insurance Reforms who blogs about the health care law.

“At a time that Republicans are going to want to focus on Medicare for All or something else, I think it’ll thrust the ACA and preexisting conditions back into the spotlight,” she said.

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