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Last Wednesday evening, the U.S. Fifth Circuit Court of Appeals issued a ruling in Texas v. United States, a case challenging the constitutionality of the Affordable Care Act. The bleeding disorders community has been anxiously awaiting this pivotal court decision. HFA staff want to update you on what is known at this point.

The 5th Circuit ruling upholds (in part) a 2018 lower court decision that declared the ACA to be unconstitutional, due to Congress鈥 action in 2017 zeroing out the tax penalty under the individual mandate.[i] The 5th Circuit agreed that the ACA鈥檚 individual mandate should be struck down as unconstitutional. But the 5th Circuit also said that perhaps other parts of the ACA could survive (i.e., the mandate could perhaps be 鈥渟evered鈥 from the ACA, leaving other parts of the law in place). The 5th Circuit sent the case back to the lower court to reconsider this severability question, and also to consider whether a ruling should be limited to just the 18 plaintiff states or apply to all states.

As patient advocates and other stakeholders weigh next steps, please be aware that this week鈥檚 ruling in Texas v. United States does not affect your insurance coverage for now.聽The ACA will continue to be in effect for the full 2020 plan year. This includes ACA protections for people with pre-existing conditions, as well as the ACA鈥檚 Medicaid expansion. Individuals who signed up through healthcare.gov for 2020 remain covered and people living in the nine states where open enrollment is ongoing (CA, CO, CT, DC, MA, MN, NY, RI, WA) should sign up for 2020 coverage if they still need to do so!

What is the concern over the long run?聽Texas v. United States threatens the long-term viability of the ACA鈥檚 patient protections. A sweeping final ruling against the ACA would mean an end to the ACA鈥檚 protections for individuals with pre-existing conditions. Health plans would once again be free to deny coverage or charge much higher premiums based on health status. Tax credits that help people buy insurance on the individual market would disappear, as would the requirement that health plans cover essential health benefits.

Such a ruling could also have an impact far beyond the individual insurance market and the ACA Exchanges. Large employers would no longer have to offer insurance to their employees. Health plans could re-introduce annual and lifetime caps on benefits; would not have to limit patients鈥 yearly out-of-pocket costs; would not have to allow parents to keep their children covered up to age 26; and more. The ACA鈥檚 Medicaid expansion would disappear, eliminating coverage for many millions of people in 36 states. Provisions that save money for Medicare enrollees (such as those closing the Part D 鈥渄oughnut hole鈥) would also expire.

Again, these are consequences that聽could聽ensue if the courts ultimately find the ACA broadly unconstitutional. Please remember that the ACA鈥檚 consumer protections and other provisions remain in effect for now.

What will happen next?聽The parties defending the ACA in Texas v. United States 鈥 California and 17 other states 鈥 have indicated that they will ask the U.S. Supreme Court to review the 5th Circuit ruling. The defending states will also decide soon whether to ask for an expedited review (i.e. ask the Supreme Court to hear the case next spring and issue a decision before the Court recesses in June). The Supreme Court may (a) grant review on an expedited basis, (b) grant review, but on a non-expedited basis, meaning that the Court wouldn鈥檛 rule on the case until after the 2020 elections, or (c) refuse to hear an appeal at this point 鈥 which would mean that the case returns to the district court, as directed by the 5th Circuit. Option (c) would lead to 聽more years of litigation and uncertainty: another district court decision, another appeal to the 5th Circuit, and yet another petition for review by the Supreme Court.

All observers expect that the ACA will remain in effect pending further review by the courts, whichever path the case takes.

HFA 鈥 which had previously joined with sixteen other patient advocacy organizations to file an amicus curiae (鈥渇riend of the court鈥) brief in Texas v. United States 鈥 cosigned a statement reaffirming a steadfast commitment to protecting patients throughout the next phases of the case. HFA also joined with 27 other patient groups to issue a聽statement聽regarding the 5th Circuit ruling.

HFA staff will continue to update you about the ongoing litigation, and HFA will聽continue its efforts to advocate for affordable, quality health coverage, in all available forums. Please stay tuned 鈥 and thank you for your interest and engagement.

 

[i] In 2012, the Supreme Court had upheld the ACA as a constitutional exercise of Congress鈥 taxing power; with the penalty reset to zero, ACA opponents argued, the law could no longer be viewed as a tax.

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