The Texas federal district court decision striking down the entire Affordable Care Act (ACA) in response to a lawsuit brought by a group of Republican-led states is a radical decision that both conservative and progressive legal experts see as extreme, highly flawed, and unlikely to prevail on appeal. Coming after an election in which Medicaid, protections for people with pre-existing conditions, and health care accessibility were all key issues, this decision only further brings health care to the front of state and national debates. Because of this it will be very risky for politicians to further delay taking action on making health care more accessible and affordable. On the contrary, state and federal measures to improve access may become only more likely.
Key points to remember:
- The ACA is still fully in effect under this decision and will remain so as it is appealed to the Fifth Circuit Court of Appeals and then potentially to the US Supreme Court. Indeed, the Trump Administration has made clear the ACA continues to operate with no changes.
- This federal judge’s decision is radical – it would invalidate the entire ACA, including not only pre-existing condition protections, the marketplace subsidies, and the Medicaid expansion but also provisions that allow children under 26 to stay on their parent’s plans, preventative care without cost sharing, no annual or lifetime limits, and closing the Medicare Part D donut hole. Congress repeatedly tried and failed to repeal much of the ACA in 2017. Now a federal district court judge in Texas is saying he alone has the ability to repeal the ACA and unilaterally take away health care coverage from millions of Americans.
- This particular federal judge is a well-known partisan, has displayed ongoing hostility towards the ACA, and was chosen to hear this suit by the 20 Republican Attorneys General and Republican Governors bringing this case for exactly these reasons.
Why this case is risky for opponents of the Medicaid expansion and affordable care:
For years, Medicaid expansion opponents in and out of government have used one excuse after another to delay taking federal funds available to expand affordable health coverage. If a court case dealing with the Affordable Care Act was pending they used that as an excuse – repeatedly. When the court case eventually was decided in favor of the ACA, then not enough federal “flexibility” and “difficulty sustaining the Medicaid system” became the excuse. Or the excuse was administration problems and “cost overruns.” And if all else fails opponents can always fall back on the time-honored excuse that more affordable health coverage isn’t in keeping with a state’s “family values.”
So of course some opponents of affordable health coverage will try and use this latest court case from Texas (brought by officials from their own party no less) as yet another excuse to not address the health care crisis in their states. Times, however, are far different. Progressive groups are cutting ads highlighting the decision and calling on Congress to preserve health care protections, new questions about health care are being raised in gubernatorial races in southern states, and “Democratic operatives are already thinking about how to use the ruling to undermine Republicans in the Senate.” And inaction isn’t inevitable. Nebraska State Senator Adam Morfeld had this to say about the Texas case: “If we didn’t enact policy in our state because of pending court cases elsewhere, we’d never enact policy. There are lawsuits on just about every federal program.”
One widely-read analysis has the Texas lawsuit decision landing like a “stink bomb” among Republicans:
“Economist Gail Wilensky, who oversaw the Medicare program for President George H.W. Bush, said the state attorneys general from GOP strongholds who filed the lawsuit really weren’t very considerate of their fellow Republicans.
“The fact that they could cause their fellow Republicans harm did not seem to bother them,” said Wilensky, a critic of President Barack Obama’s signature domestic achievement.
“The people who raised it are a bunch of guys who don’t have serious election issues, mostly from states where saber-rattling against the ACA is fine,” she added. “How many elections do you have to get battered before you find another issue?””
Families are tired of excuse after excuse as to why truly affordable health coverage isn’t more widely available. Voters across the country remain focused on health care as a major issue and continue to demand better accessibility and affordability whether through Medicaid expansion, increased opportunities to buy affordable coverage for themselves and their families, and a commitment from political leaders to reverse ongoing coverage losses. Health care was unsurprisingly the major issue in last month’s elections across the country and the effect of this latest court decision is only to reinforce this focus. So there will likely be even greater political pressure to maintain the Medicaid expansion in states that have already adopted it and fully and expeditiously implement it in states that have recently decided to take it up.
In states that haven’t expanded Medicaid, this decision will likely fuel pressure to make affordable health coverage available quickly. State opponents won’t be able to use yet another federal court case as an excuse for foot-dragging. In Congress, Democrats have already pledged to respond to this Texas lawsuit and to intervene with new majority in the House in January. And many states are exploring new ways to offer affordable coverage.
In the end, while some state-level politicians will no doubt try to use this Texas lawsuit as yet another excuse to delay addressing the affordable health coverage their state residents need, they are sailing against the wind.