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Analysis

ACA Ruling Dismays Hospitals, as Law's Defenders Look to Supreme Court

By Jack O'Brien  
   December 18, 2019

The decision to remand the case to a lower court prompted swift reaction from healthcare observers.

The Fifth Circuit Court of Appeals ruling that the Affordable Care Act's (ACA) individual mandate was unconstitutional sparked immediate reaction from healthcare stakeholders.

The appellate court remanded the suit to a lower court, which had previously ruled the entire law was unconstitutional, in a decision handed down Wednesday evening.

California Attorney General Xavier Becerra, who is leading a coalition of 20 other states defending the ACA in this case, called the decision "regrettable" during a press conference after the ruling.

Becerra said that the ruling leaves Americans who enrolled in health coverage through the ACA in a "state of great uncertainty," prompting him to take further legal action.  

"We are announcing here at the California Department of Justice, that we are prepared to file a petition for certiorari with the U.S. Supreme Court to challenge this ruling to uphold the ACA in all respects," Becerra said. 

He declined to give a specific timeframe for filing the cert petition but said the motion would be delivered, noting that the "clock just started ticking."

Representatives for hospitals and health systems, as well as law professors and a member of Congress also weighed in after the ruling was handed down. 

"Today's decision is unfortunate because it leaves this critical law that so many Americans depend on in limbo," Chip Kahn, CEO of the Federation of American Hospitals, said in a statement. "Without question, this decision stretches out the timeline on the final fate of pre-existing conditions and other important protections in the ACA. We hope that the courts will act with dispatch to ensure that the vital provisions of the ACA remain in place."

The American Hospital Association (AHA) called the ruling a "wrong-headed decision" that puts health coverage gains in jeopardy.

"America's hospitals and health systems are disappointed that the court has declined to rule on which parts of the ACA can remain," Rick Pollack, CEO of AHA, said in a statement. "Sending the decision back to the federal district court that invalidated the entire law puts health coverage – and peace of mind – for millions of Americans at risk."

Margaret A. Murray, CEO of the Association for Community Affiliated Plans, said in a statement that the Fifth Circuit's ruling will "wreak havoc upon the lives of many who depend on subsidized marketplace coverage or Medicaid expansion."

Bob Doherty, senior vice president of governmental affairs and public policy at the American College of Physicians, also tweeted that the decision was "terrible."

Related: Appellate Court Rules ACA Individual Mandate Unconstitional But Stops Short of Tossing Entire Law

Several law professors from around the country opined on the Fifth Circuit's decision, critiquing the legal basis around the ruling itself.

Nicholas Bagley, a law professor at the University of Michigan, tweeted that the ruling was "a win for the red states, and a defeat for the ACA."

"The Fifth Circuit decision is a remarkable mix of hubris and cowardice," Bagley added. "It's hubris to say that the *unenforceable* individual mandate is an unconstitutional *command.* And it's cowardice to remand without grappling with what that means for the rest of the law."

Marty Lederman, a law professor at Georgetown University Law Center, tweeted that he typically assumes judges are "competent and acting in good faith," but took issue with the Fifth Circuit's decision.

"I can't recall any 'reasoning' remotely as absurd as this--a holding that the 2017 GOP Congress imposed a mandate to buy health insurance," Lederman tweeted.

Former members of the Obama administration's policy team defended the landmark healthcare policy online and criticized the decision. 

Andy Slavitt, MBA, former acting commissioner for the Centers for Medicare & Medicaid Services, tweeted that the ruling was "an attempt to get the law invalidated without taking responsibility."

"So far I’ve heard the same thing from every lawyer I’ve spoken with that this is a lawless ruling," Slavitt continued. "Sending a clear cut case to invalidate the ACA back to the conservative judge that invalidated it in the first place is at best a dodge, but more accurately is subterfuge."

Joshua Peck, former chief marketing officer for HealthCare.gov, said the Trump administration has sought to undermine the ACA for years including " abandoning its duty to defend the law in court."

"Without the ACA, tens of millions of Americans would lose health coverage, the marketplaces and tax credits would be abolished, and protections for Americans with preexisting conditions and other benefits guaranteed by law would disappear," Peck said. "Ongoing attacks on the ACA, including today's erroneous decision, create damaging uncertainty and threaten the health coverage of Americans from coast to coast."

Amid impeachment proceedings on Capitol Hill, Rep. Lloyd Doggett, D-Texas, issued a statement charging that "Republican appellate appointees" had impeded healthcare access for millions of Americans.

"The court is returning some issues for further consideration by a trial court that has already made obvious its hostility to the ACA," Doggett said. "It is just a matter of time before that Fort Worth trial court will again invalidate the entire ACA, including its protections for patients with pre-existing conditions."

Meanwhile, three House Republican leaders— Reps. Greg Walden, Kevin Brady, and Virginia Foxx—issued a statement that the ruling was "no surprise."

"Republicans warned Democrats the ACA, written in secret and rushed through Congress, was built on an unconstitutional foundation. And in their haste, Democrats forgot critical language that could have avoided this embarrassment."

Jack O'Brien is the finance editor at HealthLeaders, a Simplify Compliance brand.


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