The U.S. Department of Justice announced Thursday it won't defend the Affordable Care Act against a legal challenge of its constitutionality.
The administration called on the court to declare that the provisions that guarantee coverage will be "invalid beginning on January 1, 2019", when the mandate penalty goes away.
The background: Twenty states, led by Texas, sued the federal government in February as part of an effort to overturn the Affordable Care Act, arguing that, because the GOP tax bill eliminated the penalty for individuals who don't buy health insurance, the law as a whole was unconstitutional.
Insurers are now in the midst of deciding whether to participate in the individual marketplaces created under the law in 2019 and, if so, what filing rates with state regulators will be.
For years, Republicans said they would protect people who suffer from preexisting conditions and were priced out of the individual market. The Kaiser Family Foundation puts the number at about a quarter of the country's under-65 population. But it does certainly raise the prospect of a court decision that would say there could be no more protections for people with preexisting conditions. Health insurers have for years been raising premiums, complaining about uncertainty and withdrawing from the business of selling individual insurance plans, and more changes could further destabilize the market.
In Lexington, congressional hopeful Amy McGrath has attacked incumbent Republican Andy Barr for "enthusiastically" voting to strip healthcare coverage from more than a quarter-million Kentuckians - "many of the same kind of people", she said in a campaign video, that her mother, a polio survivor, treated as a doctor. These are lawyers who have made arguments they personally disagreed with countless times. In Pennsylvania, where Republicans last month nominated Rep. Lou Barletta for Senate, the state Democratic Party issued a statement that warned, "Donald Trump's lapdog Lou Barletta will throw his full support behind this attempt to end coverage for people with pre-existing conditions". The move could upend insurance markets for next year and change the dynamic of this fall's elections.
Insurers face a more immediate quandary.
The Texas case provides more uncertainty for state health insurers who already submitted their requested premium increases for 2019 for state review. What the Justice Department is arguing is that most of the rest of the law is still OK. The five conservative justices all agreed that, under the commerce clause of the Constitution, Congress did not have the authority to make people buy insurance.
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"In light of yesterday's news that the Justice Department will no longer be defending the Affordable Care Act, a reminder: the ACA isn't collapsing".
"These attorneys are civil servants". They're not political. They are good soldiers.
"I've long held a position that the federal government should get completely out of the health insurance business", he said. "They believed they could not in good conscience, consistent with their professional obligations, sign the brief". Their lawsuit has contended that the entire ACA program can not function as an economic matter without the assurances of adequate numbers of people buying insurance.
The news rallied defenders of the law into action and raised questions among legal scholars about the likelihood it would succeed. Outside of these two provisions [the guaranteed issue and community rating] of the ACA, the Department will continue to argue that Section S000A (a) is severable from the remaining provisions of the ACA.
In parting company with the challenging states on their demand that all of the ACA be nullified, the Administration document said it was hypothetical speculation whether the entire program would collapse without the individual mandate and the related insurance coverage requirements.
The two provisions, along with Obamacare's requirement that insurers offer comprehensive coverage, have been targets of Republicans seeking to repeal the law and lower premiums.
"If the Trump administration is successful in arguing against the constitutionality of protecting patients' access to care, it will have immediate and disastrous effect on our health care system and the American people", the lawmakers say. But Sessions said this was a "rare case" and not unprecedented. A CBS News poll of 64 competitive House districts also found that health care is the top issue for voters, ahead of jobs and wages as well as immigration.