Please forgive millions of Americans for drawing at least two incorrect conclusions from U.S. District Judge Reed O’Connor’s ruling Friday in a lawsuit aimed at bringing down the Affordable Care Act.
Contrary to the headlines that ricocheted across the country from Fort Worth, O’Connor did not “dismantle” the ACA, more familiarly known as Obamacare.
It may be fall 2019 before an appeal of the ruling is heard. If the case then goes to the Supreme Court that could push a final decision into 2020 or beyond. In the meantime, nothing changes.
And despite the congratulatory rhetoric from plaintiffs and their lawyers, including the attorneys general of Texas and 19 others states, O’Connor’s ruling has riven rather than unified longtime opponents of the Affordable Care Act, some of whom consider the ruling an act of judicial activism.
The lengthy and detailed ruling rests on a relatively simple premise. When Congress repealed the individual mandate to buy health insurance in December 2017, it shut off the revenue stream, or tax, that helps fund ACA programs. The Supreme Court in 2012 had upheld the tax, legitimizing Obamacare.
“So interwoven with regulations [of the ACA] was the individual mandate,” O’Connor wrote, “they cannot be separated. None of them can stand.”
The ruling, however conclusive-sounding the language, did not include a preliminary injunction that would have pulled an emergency brake on a national health insurance program with 20 million enrollees.
The U.S. Department of Health and Human Services issued a statement that “this decision does not require that HHS make any changes to any of the ACA programs it administers or its enforcement of any portion of the ACA at this time.”
Within a couple of hours, California Attorney General Xavier Becerra announced his intention to challenge the ruling in the Fifth U.S. Circuit Court of Appeals in New Orleans.
The reaction from supporters of the ruling was of a convincing victory.
“As I predicted all along,” President Donald Trump tweeted Friday, “Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions.”
The lead attorney in the lawsuit, Robert Henneke, with the Texas Public Policy Foundation, the state’s most influential conservative think tank, wrote in a release following the ruling, “Today’s historic win striking down Obamacare is only the first step. We need to focus on the future and look to states like Texas to lead in restoring the relationship between doctor and patient, unencumbered by government and insurance company red tape.”
“We encourage Washington to recognize this for the sea change that it is and to stand down,” Henneke tweeted on Tuesday morning. “It’s never been a proper role for the federal gov’t. to regulate health care and health insurance. It is a proper role for the states.”
On Monday, Henneke told The Texas Monitor he was confident the case would be upheld in the Fifth Circuit. But he said, “The ultimate solutions are not going to come from the court, but from legislatures and the states.”
Contributing to the confusion about the ruling was the lawsuit’s highest profile plaintiff, Texas Attorney General Ken Paxton. Paxton’s office quickly issued a press release that “applauded a U.S. District Court decision declaring unconstitutional granting a nationwide preliminary injunction against the federal government’s Affordable Care Act, commonly known as Obamacare.”
About 15 minutes later, his office issued a correction, dropping “preliminary injunction” but adding “enjoining Obamacare,” which has a similar legal meaning, before issuing a second correction 90 minutes later eliminating any suggestion that O’Connor had ordered an immediate halt to ACA health insurance.
In Austin, Stacy Pogue, a policy analyst for the Center for Public Policy Priorities, a progressive advocate for ACA, told Spectrum News, “It’s a pretty reckless ruling because what is at stake is healthcare for millions of Americans, including a million Texans, who have coverage in the health insurance marketplace.”
Joe Larsen, a constitutional attorney and First Amendment specialist in Houston, said people covered by Obamacare had good reason to hyperventilate with all the rhetoric about an end to their health care coverage.
The suit was filed in Fort Worth, Larsen said, in hopes that it would be heard by O’Connor, who has a long track record of favorable rulings for conservative causes.
“Republicans in Congress for years tried and tried to repeal Obamacare and they couldn’t do it because they didn’t have anything to replace it with,” Larsen said. “So you have a highly politicized effort to get rid of it in the courts. This ruling [of O’Connor’s] is nothing more than legislation through judicial opinion.”
Henneke disputed the judicial activism charge, saying it was Congress’ elimination of the individual mandate that prompted O’Connor to rule as he did. “Judicial activism is stepping in to rewrite the law for a preferred outcome,” Henneke said. “When Congress changed the law, he was bound to follow it as it exists today. It isn’t activism, it was him doing his job.”
The ruling reminded some conservatives of Supreme Court Justice John Roberts’ interpretation of the individual mandate as a tax, something they decried when the Supreme Court upheld the ACA in 2012.
However, it was clear by Tuesday that many conservatives who have tracked the ACA for years do not see O’Connor’s ruling as a remedy. Avik Roy, former Gov. Rick Perry’s policy advisor when he ran for president, called it a clear case of judicial activism.
The editorial boards for the conservative Wall Street Journal and the National Review, both long opposed to Obamacare, wrote editorials criticizing O’Connor’s ruling. The Review on Monday “deplored” it because it gave Congress license to skirt its responsibility to fix health insurance.
“It will not lead to the replacement of Obamacare because it is very likely to be overturned on appeal,” the board wrote, “and it is very likely to be overturned on appeal because it deserves to be.”
“I hate Obamacare so much that it’s possible I’ve written more words criticizing it over the past decade than any person alive,” Philip Klein wrote Monday. He’s the author of “Overcoming Obamacare: Three Approaches to Reversing the Government Takeover of Health Care.” “Despite my policy preferences, I’d say the latest decision from U.S. District Court Judge Reed O’Connor of Texas declaring Obamacare unconstitutional is an assault on the rule of law,” he said.
“Embracing unelected judges using shoddy reasoning to impose their policy preferences on the country just when they produce outcomes conservatives agree with would do significant long-term damage to everything conservatives hold dear,” Klein said.
Henneke and the plaintiffs are well aware that if their case succeeds and Obamacare is dismantled, states would be faced with task of shaping health insurance markets from scratch.
Gov. Greg Abbott called on the Texas Legislature to make creation of a state insurance alternative a priority in the upcoming session. State leaders are prepared to work with federal agencies to get waivers to proceed, he said.
“If Obamacare remains struck down on appeal, Texas will be ready with replacement health care insurance that includes coverage for preexisting conditions,” he tweeted Tuesday. “We will also work with Congress to ensure Texans have access to the healthcare insurance they need.”
Henneke also acknowledged the political risk in failing to address what Pogue said was the biggest concern with any change in health insurance: the fate of people with preexisting conditions. While he’s committed to a free market solution, Henneke said Monday, states need to guarantee protection of high risk pools and rules to insure care for those with preexisting conditions.
Abbott seems to agree. “Texas will strive to expand healthcare insurance coverage, reduce the cost of healthcare, and ensure that Texans with pre-existing conditions are protected,” he said.
Mark Lisheron can be reached at [email protected].