The Trump Justice Department’s decision to stop defending the Affordable Care Act in court is now coming full circle, as the case heads toward fall arguments before the U.S. Supreme Court, a time when it’s all but certain Americans will still feel the impact of the COVID-19 pandemic.
Democratic presidential front runner and former Vice President Joe Biden last week called on President Donald Trump and the Republican attorneys general behind the lawsuit to stop the legal challenge, as millions of Americans lose their jobs and benefits over the pandemic.
“At a time of national emergency, which is laying bare the existing vulnerabilities in our public health infrastructure, it is unconscionable that you are continuing to pursue a lawsuit designed to strip millions of Americans of their health insurance and protections under the Affordable Care Act (ACA), including the ban on insurers denying coverage or raising premiums due to pre-existing conditions,” Biden wrote to GOP officials.
However, Republicans show no sign of letting up on their fight against the ACA, especially against its individual mandate, which a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit ruled last year is unconstitutional.
The core legal questions raised in the litigation—whether Republicans’ removal of a penalty for the mandate makes it no longer a tax and therefore void, if the mandate can be severed from the rest of the health care law, and whether the parties even have standing in the challenge—are unlikely to be changed by the pandemic.
However, legal experts say the health crisis is all but certain to be raised in forthcoming briefs in the case and could pressure the justices to maintain other parts of the law like public health protections.
Timothy Jost, an emeritus professor of law at Washington and Lee University who focuses on health care, predicted that lawyers for both the U.S. House of Representatives and the coalition of blue states defending the law, will raise the impact of the coronavirus as reason to keep the Affordable Care Act intact. A proposed briefing schedule would have the House and Democratic states’ lawyers filing their opening briefs in early May, when the pandemic is expected to still be in full swing.
He said amicus briefs filed in the case by medical groups in support of the law will also likely feature details on how Obamacare played a role in helping Americans during the health crisis.
“There will probably be an emphasis on the public health provisions of the ACA and the fact that those are just completely independent of the individual mandate,” Jost said.
Katie Keith, a health law professor with Georgetown University, said think tanks and other groups are probably crunching the numbers on how many Americans used ACA benefits during the pandemic, and that kind of qualitative analysis is likely to be included in future briefs in the case.
Jost also said that, as the justices and the Supreme Court cannot avoid the impact of the COVID-19 pandemic, it may make them more unwilling to strike down a law that helps Americans get health care during a massive health emergency.
“The fact that the coronavirus is having such a huge effect on Americans, on their health and on the economy, is going to be something the justices won’t be able to simply ignore,” he said.
Jost said he was unsure how the Republican plaintiffs would be able to respond to those claims, other than arguing the pandemic is irrelevant to the core legal questions surrounding the mandate and whether it’s severable from the rest of the law.
Keith agreed with Jost, saying the justices are “human beings.” She also noted that other forthcoming decisions from the court, like that on the Deferred Action for Childhood Arrivals (DACA) program, could also potentially be colored by the pandemic.
Keith said the ACA lawsuit may even be complicating the administration’s response to the pandemic now. She pointed to reports that the Trump administration would not open a special Obamacare enrollment period for those impacted by the pandemic, a decision made as the president reiterated his support for the ACA lawsuit. Several Democratic-leaning states have reopened the enrollment period as the virus spreads and millions of Americans lose their jobs.
“I think the most immediate impact is the behavior of the Trump administration. It seems like the political aspects of this lawsuit could be coloring their ability to give relief to human beings right now,” Keith said, describing holding the special enrollment period as “the bare minimum” officials could do to help impacted Americans.
“I’m sure they’re doing calculus of, we don’t want to be seen as expanding this program at a time when we’re trying to get rid of it,” she added.
As for Trump himself, he seems pretty committed to the fight against his predecessor’s landmark healthcare legislation.
“That was headed up by Texas,” Trump told a reporter last week who asked about the ACA lawsuit during a coronavirus briefing. “And what we want to do is get rid of the bad health care and put in a great health care.”