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Analysis

Backlash Mounts Against DOJ's ACA Abandonment

By Steven Porter  
   June 15, 2018

Some who have disagreed with each other in past ACA litigation argue the Trump administration's legal stance is 'exactly backward.'

In the week since the Trump administration said it would quit defending key provisions of the Affordable Care Act, a diverse chorus of legal analysts and healthcare industry stakeholders have spoken out in opposition.

The outcry from law professors, doctors, insurers, and hospitals alike comes as 17 Democratic state attorneys general challenge the Department of Justice's decision in a federal lawsuit brought in February by 20 Republican state attorneys general.

The lawsuit argues that Congress rendered the entire ACA unconstitutional when it zeroed out the individual mandate's financial penalty. The DOJ's response counters that only the individual mandate and two other clauses—the community-rating and guaranteed-issue provisions, which include protections for beneficiaries with preexisting conditions—were affected by the tax reform.

But some legal scholars who have disagreed with each other in past ACA litigation argued in a joint amicus brief Thursday that the DOJ's stance on severability is "exactly backward."

"If courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an 'all or nothing' proposition," five law professors wrote, urging the court to consider the constitutionality of the individual mandate separately from every other ACA clause.

Several other stakeholder groups filed briefs of their own:

  • Health plans: "[The] plaintiffs seek to turn off the health insurance system as we know it with the flip of a switch. The ACA's scale and scope make that impossible," America's Health Insurance Plans wrote, calling on the judge to deny pending requests for a court order to halt the ACA's enforcement.
     
  • Physicians: "Invalidating the guaranteed-issue and community rating provisions—or the entire ACA—would have a devastating impact on doctors, patients, and the American health care system as a whole," the American Medical Association, the American Academy of Family Physicians, the American College of Physicians, and the American Academy of Child and Adolescent Psychiatry wrote.
     
  • Hospitals: "Plaintiffs should not be allowed to get through this Court—repeal of the entire ACA through the backdoor of severability—what they could not get through Congress," the American Hospital Association, the Federation of American Hospitals, the Catholic Health Association, and the Association of American Medical Colleges wrote. "And make no mistake: This case is but one of a multi-front battle that Plaintiffs are waging against the ACA. If the Plaintiffs are unhappy with the ACA, their remedy lies with the political branches, not this Court."

And there were others who filed briefs in defense of the ACA, including a group of economists, a service workers union, the American Cancer Society, and others.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.


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