Doctors and Hospitals Line Up Against Texas Effort to Kill Obamacare

FORT WORTH (CN) — Leading health care and physicians groups and five law professors joined 16 Democratic states Thursday in asking a federal court to throw out Texas’ attempt to kill Obamacare for alleged unconstitutionality after Congress removed the individual mandate tax penalty last year.

The American Medical Association filed an amicus brief opposing Texas’ motion for a preliminary injunction, claiming the plaintiffs lack standing and that tossing the law would “wreak havoc” on the U.S. health care system.

“The ACA’s ‘nationwide protections for Americans with pre-existing health conditions’ has played a ‘key role’ in allowing 3.6 million people to obtain affordable health insurance,” the 33-page brief states, using an abbreviation for the Patient Protection and Affordable Care Act.

“Severing those vital insurance reforms would leave millions without much-needed insurance. On top of that, the CBO [Congressional Budget Office] estimated that repealing ‘major provision’ of the ACA would cause 32 million people to become uninsured and average premiums in the nongroup market to double by 2026.”

Texas and 19 other Republican-led states brought the underlying federal complaint in Fort Worth this past February, citing the U.S. Supreme Court ruling that the ACA’s individual mandate would be an unconstitutional exercise of federal power without the tax penalty.

The Supreme Court reached that conclusion when it upheld Obamacare subsidies in 2015, to the disapproval of Republicans. After the individual mandate tax penalty was removed in the Tax Cuts and Jobs Act of 2017, Texas and the others filed their suit.

California and 15 other Democratic-led states filed to intervene in April, arguing that Congress merely reduced the tax penalty from 2.5 percent to zero and did not repeal any statutory provisions of the law.

The Trump administration announced last week that it would not defend Obamacare in the lawsuit, which Attorney General Jeff Sessions acknowledged was a rare exception to the “longstanding tradition of defending the constitutionality” of laws if reasonable arguments can be made in their defense.

Sessions asked for summary judgment in favor of Texas and declaratory judgment that the individual mandate will be invalid as of Jan. 1, 2019.

The timing of the end of the tax penalty it important, as it comes two months after this year’s midterm elections, where Republicans hope to hang onto their majorities in both houses of Congress.

The American Hospital Association filed its own brief Thursday in support of California’s intervention in the case, saying the individual mandate is severable from the rest of the ACA.

“(T)here is no evidence that the Congress that removed the penalty backing the mandate would have preferred no ACA to an ACA without an already penaltyless mandate,” the 25-page brief states.

“Indeed, its unsuccessful attempts to enact a broader repeal is evidence that Congress did not prefer a broader — much less a full — repeal.”

Five law school professors filed a third brief Thursday in support of California’s intervention.

Jonathan H. Adler with Case Western Reserve University School of Law, Nicholas Bagley with the University of Michigan Law School, Abbe R. Gluck with Yale Law School, Ilya Somin with George Mason University and Kevin C. Walsh with University of Richmond School of Law said they disagree with each other on several legal and policy questions with the ACA, including whether Texas has standing.

“And they do not necessarily share the same views on severability doctrine and how it should apply in every case,” their 17-page brief states. “Yet they agree on this: the arguments of both the plaintiff states and the United States on the severability of the insurance mandate from the other provisions of the ACA and inconsistent with settled law. If adopted, those arguments would introduce errors and confusion into severability doctrine.”

The American Hospital Association was joined in its brief by the Federation of American Hospitals, the Catholic Health Association of the United States and the Association of American Medical Colleges.

The American Medical Association was joined by the American Academy of Family Physicians, the American College of Physicians, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry.

AMA president Dr. Barbara L. McAneny said Thursday that the physicians groups filed their brief to protect important patient protections, including coverage of pre-existing conditions and children being covered under their parents’ health insurance until age 26.

“The evidence is clear: patients without insurance live sicker and die younger,” McAneny said in a statement. “We all understand that ACA is imperfect, and the AMA continues to advocate refinements that improve our health system, protect patients’ access to care, stabilize the insurance market, and maintain critical coverage gains.”

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