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Analysis

States Appeal ACA Ruling to Fifth Circuit

By Steven Porter  
   January 03, 2019

Colorado joins California-led coalition to defend the law after Trump's DOJ abandons key provisions on preexisting conditions.

A growing coalition of Democratic state attorneys general that stepped in to defend the Affordable Care Act against a lawsuit filed an appeal Thursday, beginning the next chapter of a legal saga that could progress to the Supreme Court and carry major implications for U.S. healthcare.

The federal judge who declared the entire ACA invalid last month formally placed his ruling and further District Court proceedings on hold on New Year's Eve, giving a green light for the appellate process to begin.

Although the ACA remains active law, the judge's ruling could bring dire consequences if ultimately allowed to take effect, several members of the Democratic coalition led by California Attorney General Xavier Becerra said during a press call Thursday, framing the case as a matter of life and death.

Colorado Attorney General–elect Phil Weiser, who is set to be sworn in next week, said joining the California-led coalition to defend the ACA will be his first official act.

"We will fight to protect the law, protect the rule of law, and protect people who depend on this protection," Weiser said, adding that Medicaid expansion under the ACA has been a critical lifeline to rural hospitals in the state.

A Growing Coalition
 

Colorado is the 17th state to join the California-led coalition, which also includes the District of Columbia and which could grow even more in the near future.

Weiser's win in Colorado was one of four state attorney general races Democrats picked up in the 2018 midterm elections, giving the California-led coalition a potential boost over the Texas-led coalition of Republican state attorneys general who sued to overturn the ACA. The other three were Nevada, Michigan, and Wisconsin.

Nevada Attorney General–elect Aaron Ford is expected to join the California-led coalition with backing from the incoming Democratic governor, as The Nevada Independent reported.

In Michigan, the GOP-controlled legislature sought in 2018's final days to limit the power of incoming Attorney General Dana Nessel, who was sworn in this week, but Republican Gov. Rick Snyder vetoed the measure shortly before leaving office, as The New York Times reported. Nessel has said she will join the coalition to defend the ACA this month.

Wisconsin Attorney General–elect Josh Kaul, who will be sworn in Monday, will have a tougher time formalizing his support for the California-led coalition. The state's GOP-controlled legislature passed power-limiting measures that, unlike in Michigan, were signed by the outgoing Republican governor, Scott Walker, giving state lawmakers authority over Wisconsin's involvement in the ACA suit, as the Milwaukee Journal Sentinel reported.

Wisconsin was among 20 states with Republican leaders who filed as plaintiffs in the Texas-led lawsuit. That number included Maine, where the attorney general's office said outgoing Gov. Paul LePage signed onto the suit in his individual capacity, not on the state's behalf. That means a sizable majority of the 50 states are involved in the case on one side or the other, with each coalition about equal in number.

Congressional Involvement?
 

Midterm voters also put Democrats in control of the U.S. House of Representatives, which is slated to vote next week on whether to intervene in the ACA lawsuit, as The Hill reported.

Democrats are using the vote to press their Republican counterparts, telling them either to agree to defend the ACA or to face the political consequences of declining to support the ACA's popular provisions, including protections for people with preexisting conditions.

Editor's note: This story has been updated to include additional information about Democratic state attorneys general in Michigan and Wisconsin.

Steven Porter is editor at HealthLeaders.


KEY TAKEAWAYS

As newly elected state officials take office, three states are poised to join the California-led coalition of states defending the ACA against a challenge filed by a Texas-led coalition of plaintiffs.

A fourth state, Wisconsin, would be similarly expected to join in the defense, were it not for the GOP-controlled legislature tying the incoming attorney general's hands.

While the DOJ has declined to defend key provisions of the ACA, members of Congress are expected to vote on whether to get involved.


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