A ruling on a Texas-led lawsuit challenging the Affordable Care Act is imminent. The suit is a Republican-backed effort to eliminate the entire law after Congress failed to do so in 2017.
Because state leaders asked that the lawsuit essentially be fast-tracked, legal experts say a ruling from the Fifth Circuit Court of Appeals will likely come down sometime before the holidays.
“This is a case that could be argued next spring. We could already have the Supreme Court’s decision before summer of next year,” said Rob Henneke, general counsel with the Texas Public Policy Foundation.
The lawsuit is the latest in a line of challenges to the federal health care law, commonly known as Obamacare. The plaintiffs include a coalition of GOP-led states and individuals who argue that when Congress zeroed out a tax penalty in 2017 for not having health insurance – known as the individual mandate – the entire law became invalid.
Stephen Vladeck, a law professor at UT Austin, said the argument being made in this lawsuit is “controversial … even among those who are hostile to Obamacare.” He said if the Fifth Circuit Court of Appeals upholds a lower court ruling that sided with Texas and others, it would certainly be appealed.
“That will virtually guarantee that the Supreme Court has to step in,” Vladeck said.
The lower court in Texas that sided with plaintiffs in this case didn’t issue an order striking down the law, though. That means immediately after, the law will still be in place, even if the Fifth Circuit upholds the decision in Texas.
Henneke, who is part of the legal team representing plaintiffs in this case, said the entire health law is unconstitutional and should be struck down. And if the Fifth Circuit and the U.S. Supreme Court agree with him, he said, there should be time to “transition” to a new system.
“It’s important to point out that nothing happens immediately,” Henneke said. “There is not a switch that flips.”
But if the U.S. Supreme Court ultimately rules to scrap the entire law, Vladeck said that won’t be an easy transition.
“If the courts – either the Fifth Circuit or the Supreme Court on appeal – throw out the entire statute, I think those consequences would be shocking and mind-boggling and would affect just about all of us in at least some respect," Vladeck said, "mostly in ways that are bad."
For example, he says, the federal health care law also includes funding for programs that treat opioid abuse and HIV/AIDS. There are also millions of Americans who buy health insurance off an individual market created for people who don’t get insurance from an employer, Medicare or Medicaid.
Henneke said he thinks that there is a way to replace Obamacare without leaving millions of people without insurance, though.
“Without the Affordable Act does not mean that Congress or the individual states themselves could not come back and replace some of the ways that people currently have coverage,” he said. “So, the fact the law might be struck down does not mean that nothing could ever replace it.”
When Republicans in Congress tried to repeal and replace the health care law in 2017, though, they could not agree on a plan that would offer coverage to people who relied on Obamacare.