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Appeals court appears ready to strike down Affordable Care Act

The ACA is not a Jenga tower that will collapse upon removing the piece of the individual mandate, America's Health Insurance Plans argues.

Susan Morse, Managing Editor

The fate of the Affordable Care Act rests on the question of whether the law remains constitutional without the individual mandate.

Congress got rid of the individual mandate in 2017, ending the tax penalty for those who decide not to buy health insurance.

The Supreme Court previously ruled that the ACA is constitutional because the government has the authority to tax individuals. Without that penalty, the entire law is moot, is the argument presented by Texas and 19 other Repubican-led states before the Fifth Circuit Court of Appeals in New Orleans.

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California and other Democratic-led states and the House of Representatives are defending the law. On Tuesday, they argued that Congress never intended to strike down the ACA in its entirety when it eliminated the tax penalty for individuals who did not get insured.

The two appellate judges appointed by Republican presidents appeared skeptical when that argument was raised during oral arguments, according to The New York Times. The third judge in the three-member panel was appointed by a Democrat.


Whatever the outcome of the appeal, the final decision over the ACA appears destined to head to the Supreme Court, where justices appointed by Republican presidents outnumber those appointed by Democrats, 5 to 4.

Republican appointees include Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Those appointed by Democrats include Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The case may move to the high court as the 2020 presidential race is being decided, with healthcare at the top of the list of election issues.

Without the ACA, millions of individuals would lose coverage and all health insurance markets, not just the marketplace, would be impacted, according to America's Health Insurance Plans, in a brief filed with the appeals court.

Providers would certainly see more uncompensated care. Since being enacted, the number of people without health insurance has decreased by over 20 million, AHIP said.

The ACA has restructured the individual and group markets for purchasing private health insurance, expanded Medicaid and reformed Medicare, including the resurrection of Medicare Part D's prescription drug donut hole, AHIP said. Health insurers have invested immense resources into adjusting their business models, developing new lines of business, and building products to implement and comply with these reforms.

Striking down the ACA would end the guarantee of coverage for those with preexisting conditions, the assurance that individuals could stay on their parent's plans until age 26, the prohibition on annual lifetime benefit limits and the provision of preventative care at no out-of-pocket cost. It would abolish the premium tax credits and cut funding for expanded Medicaid programs in the 37 states that have adopted Medicaid expansion, AHIP said.

Getting rid of the law, without a replacement, would create a vacuum for insurers, who set rates based on actuarial assumptions about the risk pool mix and anticipated enrollment numbers, the organization said.


In December, a federal court in Texas found the entire ACA must be invalidated on the basis that it is inseverable from the individual mandate.


"That ruling is misguided and wrong, and if permitted to stand, it would result in massive disruption to all Americans with health coverage today. That includes people with preexisting conditions, those who receive coverage through their employer, and Medicare and Medicaid enrollees, as well as those who buy their own coverage," said Matt Eyles, president and CEO of America's Health Insurance Plans.

Twitter: @SusanJMorse
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