EDITORIAL: There are good reasons to worry about ACA, but Texas ruling shouldn’t cause panic

Dec. 18--December 18, 2018 1:24 pm

On Friday, a federal judge in Texas ruled that the Affordable Care Act is unconstitutional because lawmakers had eliminated the individual mandate, an essential part of the law.

The ruling, at first, seems like a potentially fatal blow to the landmark health care law. Left-leaning advocacy groups ominously warned that 20 million Americans would lose their insurance coverage because of the decision. Protections for pre-existing conditions and Medicaid expansion were also doomed, they warned.

While there is reason for concern, these warnings are premature.

First, the Texas decision did not include an injunction that invalidated the Affordable Care Act. The law remains in effect and people covered through its insurance marketplaces remain insured. Patient protections that extend to employer-based and other private health insurance also remain in effect.

Second, Sen. Susan Collins and legal experts agree that the decision, which caught pundits off guard, is likely to be overturned by higher courts, including the U.S. Supreme Court, if it gets that far. States that were defendants in the case, led by California, are appealing the decision. Maine Gov. Paul LePage joined the 19 Republican attorneys general and governors who had sought to invalidate the law. He did so as an individual and not on behalf of the State of Maine.

Dmitry Bam, the associate dean of the University of Maine School of Law, said the Texas decision is "pretty clearly wrong." Therefore, it is likely to be overturned, probably by the 5th Circuit Court of Appeals, which will hear an appeal. That court's decision could then be appealed to the Supreme Court. The Supreme Court is unlikely to let the Texas decision stand because it would be disruptive to millions of Americans and the U.S. economy. The court tries to avoid issuing rulings that would be so disruptive, Bam said.

Unlike the Texas judge, most courts believe in the severability principal. In this instance, that means that the individual mandate can be separated from the rest of the Affordable Care Act. In other words, the mandate can be repealed and the law remains constitutional.

Courts typically defer to the intent of Congress when considering federal laws. Clearly, Congress believes that the ACA can stand without the individual mandate because members of Congress voted last year to repeal the mandate but left the rest of the law in place.

Still, there is reason for worry. The Texas ruling injected more uncertainty into the already turbulent health insurance industry. "There is no impact to current coverage or coverage in a 2019 plan," Centers for Medicare and Medicaid Services Director Seema Verma tweeted Friday night.

Minutes later, she tweeted, "The judge's decision vindicates President Trump's position that Obamacare is unconstitutional," matching her boss' rhetoric that the decision is "great news for America!"

Meanwhile, the Trump administration has sought to undermine the ACA by making it harder for people who sign up for coverage and by weakening standards for that coverage. It has cut the annual enrollment period in half, and it shut down the online enrollment system several times during that period for lengthy stretches. It also slashed spending on advertising to encourage enrollment in the ACA marketplace and on navigators who help people sign up for plans.

The administration has also begun approving waivers from states allowing them to take coverage away from low-income residents who do not meet work requirement or pay monthly premiums. It has also put new rules in place allowing short-term policies with high costs and limited coverage.

There are many reasons to worry about the future of the Affordable Care Act. The Texas ruling isn't at the top of the list when compared to ongoing efforts by the Trump administration to undermine the law, and the likelihood that the ruling will be overturned.

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(c)2018 the Bangor Daily News (Bangor, Maine)

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