After eight years of trying, Republicans may finally have found a way to kill the Affordable Care Act. On Friday, a conservative federal judge in Texas responsible for several oddball rulings declared the entirety of Obamacare to be unconstitutional. By handing a victory to 18 Republican state attorneys general and two Republican governors, however, the judge has threatened to put healthcare out of reach for millions of lower-income Americans, undo important insurance reforms and toss out federal efforts to improve the cost and quality of care.
The ruling will be appealed and has no immediate effect. Yet by issuing it before the end of open enrollment, Judge Reed O’Connor needlessly sowed confusion and, potentially, discouraged some people from obtaining coverage for 2019. That’s unforgivable. Worse yet, it could result in the entire law being tossed out by the courts.
We get it — there are plenty of Republicans who don’t like major features of the ACA and resent the way it was enacted. But the relentless, Wreck-It-Ralph attacks on the law in Congress and the courts should have ended last year, when Republicans could get neither a pure repeal nor a repeal-and-replace plan through the Congress they controlled even on a simple majority vote.
That episode delivered at least two crystal clear lessons: The public did not want to lose the reforms the ACA enacted for people not covered by large employers’ plans, particularly the protections for the millions of Americans with preexisting conditions; and the GOP simply hasn’t developed a workable substitute for Obamacare. And to drive those points home, voters in November swept Republicans out of the House majority. According to exit polls, the No. 1 issue in the midterms was healthcare, and voters didn’t want Republicans in control of it.
Voters have come around on Obamacare in part because they’ve started to see what it really is: an effort to make healthcare more accessible and affordable, in part by shifting some costs onto healthier and higher-income Americans — instead of the “government takeover” of healthcare that its critics ludicrously claimed it to be. In addition to helping people in the so-called individual market (that is, those who aren’t covered by employer health benefits), the insurance reforms make sure that employers offer comprehensive coverage that caps their workers’ healthcare bills for the year, while making preventive care — including contraceptives for women — available with no out-of-pocket costs.
And in a sign of how far we’ve come since Obamacare took full effect in 2014, premiums at the state insurance marketplaces stopped their sharp climb this year. In fact, the average premium for the typical comprehensive policy will drop slightly in 2019.
But Republican ideologues have been nothing if not persistent in their efforts to erase the ACA from the books. So when Republicans in Congress failed — again — to repeal the law in 2017, GOP state attorneys general filed a new complaint against the ACA in February in the Northern District of Texas.
The lawsuit is too clever by half. Noting that the Supreme Court upheld the constitutionality of the ACA’s insurance mandate in 2012 because it amounted to a tax, the AGs argued that the mandate became unconstitutional the moment Congress eliminated the mandate’s tax penalty in the big GOP tax cut bill last year. And because the mandate is a key piece of the reforms the ACA made in the individual insurance market, they asserted, the whole law must be tossed out.
Even the Trump administration, which has done almost everything in its power to undermine the ACA, argued that only a portion of the ACA’s insurance reforms should be declared invalid. But Judge O’Connor swallowed the AGs’ line of reasoning, declaring that the Supreme Court’s 2012 ruling and the 2017 tax law combined to make all of Obamacare unconstitutional.
That’s a tortured reading of the law. Not only have the state Obamacare exchanges moved ahead successfully this year without the tax penalty to enforce the mandate, there’s no connection between the penalty and other major features of the law, such as the expansion of Medicaid to more low-income and disabled adults — an expansion that has been adopted by 37 states, many of them under GOP control, because it’s both humane and good for public health and productivity.