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While many have their eyes glued to the unfolding impeachment investigation, health advocates – along with millions of people who depend on the Affordable Care Act (ACA) for their coverage – are nervously awaiting a ruling from the 5th U.S. Circuit Court of Appeals on the health care repeal lawsuit. This litigation, brought by the state of Texas, among others, and supported by the Trump administration could eliminate all of the financial support and consumer protections the ACA made possible. A ruling that has the potential to rip away coverage and undermine financial security for tens of millions of people could be announced at any moment
This case, just one in a long series of efforts to undermine the ACA, is essentially an effort by the Trump Administration and its allies to achieve by other means what they failed to do legislatively – repeal the Affordable Care Act (with no replacement nor plan for coming up with one). Although mobilizing around a legal case is more difficult than engaging in a legislative fight, it is critically important that supporters of quality affordable health care for all not remain quiet while the legal process unfolds.
Why is this case important?
Although finding for the plaintiffs would require the court to depart from firmly established precedent, we cannot rule out such an outcome. Federal Judge Reed O’Connor has already ruled that when Congress set the Individual Responsibility Requirement (also known as the Individual Mandate) to zero, they essentially invalidated the entire law. This means that there is a lot at risk: Medicaid coverage and premium tax credits for low-income adults and families, along with protections against discrimination for people with pre-existing conditions, older adults, people who are LGBTQ, and more. The case is now before the 5th Circuit. If the court sides with Judge O’Connor, it will more than likely set off a tense legal battle that will unfold squarely in the middle of the 2020 presidential election campaign.
Before all is said and done, the case is likely to go to the U.S. Supreme Court. While advocates, consumers and other stakeholders cannot influence judges directly, that does not mean there is nothing we can or should do. Judges don’t rule in a vacuum. There needs to be a context of public awareness and public opposition to a bad ruling. That is where advocates play a necessary role. As a collective, we need to be driving the narrative about the harm that dismantling the ACA would cause. We need to be amplifying the stories of real people, and we need to hold key decision makers accountable for either supporting the case or looking the other way. These officials include, first and foremost, the Trump administration, members of the U.S. Senate who have blocked that body from intervening to defend the law, and the Attorneys General (AGs) in states who are party to the suit. There is also an opportunity to engage with the state AGs who have argued against the plaintiffs’ position, and with state and local governments to elevate public awareness of the harm that repeal would cause.
Furthermore, even if we were to win all the way to the SCOTUS and the case were to be thrown out, the story would not be over. There are clear signals from both House and Senate Republicans that if they can retake the House and hold the White House and Senate, they intend to pursue ACA repeal again in 2021. The work that we do now to alert the public and build opposition to a bad verdict is also a shield against another legislative repeal effort.
Don’t panic, organize (and enroll)
With open enrollment for 2020 right around the corner, it is important to stress that we do not expect any immediate consequences, even if there is an adverse ruling from the 5th Circuit. That is far from the end of the story. The case then would very likely go to Supreme Court – probably in 2020 but possibly as late as 2021. Until there is a final decision, the ACA remains law and people should get the coverage and financial assistance for which they are eligible. At the same time, the more we raise our voices in protest now, the less likely the courts are to ultimately support repeal.
We can’t know exactly when the 5th Circuit will rule or how they will rule, but in the context of the current “24/7” impeachment watch, we know it will be hard to break through the intense news cycles and into public awareness. We must, therefore, be ready to push back hard against a harmful ruling in order to bolster our chances of winning in the long run.