Three Judges, One Hearing: At Stake on July 9, the ACA's Future

Alicia Ault

July 03, 2019

On July 9, a three-judge panel at the US Fifth Circuit Court of Appeals in New Orleans will hear from both sides on whether the Affordable Care Act (ACA) is constitutional or should be struck from the law books.

If the law is found by the judges to be unconstitutional — as a lower court ruled in December — it not only would be a dangerous precedent, but it would threaten the health of millions of Americans, said Cheryl Parcham, director of access initiatives at the consumer advocacy group Families USA.

"It's a really scary prospect — it's a scary prospect for democracy and it's a scary prospect for all the people who are depending on this law for their health care," Parcham told Medscape Medical News. She said that at least 20 million Americans would lose health insurance, including some 12 million on Medicaid.

Physicians, consumer and patient advocates, and healthcare groups have voiced their support of the law through friend-of-the-court briefs. In June 2018, the American Medical Association, the American College of Physicians, the American Academy of Family Physicians (AAFP), the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry were among the first.

When the Trump administration announced in March that it would not defend any part of the ACA, many groups expressed grave concern.

"The Department of Justice support of the district court's December ruling to strike down the Affordable Care Act should alarm everyone," said AAFP President John Cullen, MD, in a statement at the time.

Even many conservatives have criticized the Trump administration's stance.

"As regular readers know, I'm not much a fan of this suit, and think the district court's decision should eventually be overturned," wrote Jonathan Adler, Johan Verheij Memorial Professor of Law at the Case Western Reserve University School of Law  on the conservative-leaning blog, the Volokh Conspiracy, in late June.

"Are We Going to Go Back 10 Years?"

The administration's decision unleashed a flood of amicus briefs in support of the law, including from:

"Trying to even figure out what the invalidation of the entire Affordable Care Act would mean is probably impossible," Timothy S. Jost, professor emeritus at the Washington and Lee University School of Law in Lexington, Virginia, told Medscape Medical News. "Are we going to go back 10 years?"

Jost said he expected the Fifth Circuit panel — made up of former President Jimmy Carter's appointee, Carolyn King; Jennifer Elrod, appointed by former President George W. Bush; and Kurt Engelhardt, appointed by President Donald J. Trump — to uphold the ACA.

"I think the odds are still in favor of upholding the Affordable Care Act, other than perhaps the individual mandate, even with a conservative panel," he said.

Court Has Many Options

The three judges will have a variety of options, however.

The main plaintiffs challenging the ACA — 18 Republican attorneys general, led by Texas — sought to delay the hearing so they would have more time to answer last-minute questions from the judges about whether the parties intervening on behalf of the law, mostly Democrats, had appropriate standing to even appeal the case.

But the court denied that request to postpone the hearing. The additional plaintiffs — two individuals, and the Trump administration — reportedly did not support the delay, anyway. On July 9, the plaintiffs will have 45 minutes to argue their assertion that the ACA became invalid when Congress eliminated the individual mandate penalty in 2017.

US District Judge Reed O'Connor ruled in their favor in December, but he did not grant a request to immediately overturn the law. Thus the ACA has remained in force, while 21 Democratic state attorneys general and the US House of Representatives have mounted a defense. They will also have 45 minutes on July 9 to make their argument that the ACA should remain intact.

The court could determine that the House, the Democratic states, or both don't have standing to intervene on behalf of the law, Jost said. If the judges determine that neither party has the appropriate merit to challenge the plaintiffs, then they could dismiss the appeal and the lower court decision would stand. The court is allowing parties from both sides of the issue to file legal briefs by Friday, July 5, on the legal standing of the case, while maintaining the current hearing date.

Or the court could dismiss the appeal and vacate O'Connor's judgment, "in which case there wouldn't be any decision in the case at all," Jost said.

But Jost thinks the most likely scenario is that the Fifth Circuit will find that the Democratic attorneys general have standing, and that it will reverse the district court's ruling.

In that case, the issue would be settled and it would be unlikely that it would ultimately be taken up by the Supreme Court.

The Threat Is Real

Even though some legal observers say it's likely the appeals court will not throw out the ACA, it is still possible.

"We think that there's grave harm that could occur," Parcham said, adding that the case "has to be taken seriously."

Among the other things that could be lost if the law is overturned:

  • Allowing young adults up to age 26 to stay on parents' plans

  • Elimination of annual and lifetime caps on benefits

  • Prohibition of preexisting condition coverage exclusions and medical underwriting

  • Coverage of prevention and screening benefits with no deductibles or copayments

  • Required coverage for mental health and addiction treatment services

  • Subsidies for 9 million people who buy coverage in the marketplace

Some plans might not even cover maternity care, as occurred in the pre-ACA days, Parcham said.

Jost said he expects a relatively quick ruling from the Fifth Circuit — as soon as September. "Everybody knows this is an important case and it needs to get resolved," he said.

Ultimately, though, the case for the ACA could end up before the Supreme Court again.

The Supreme Court "will not allow a single district court judge in Texas, or even appeals court judges, to resolve this issue," Nicholas Bagley, a professor at the University of Michigan Law School, told Politico.

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