The worsening coronavirus outbreak may be stretching the limits of the U.S. health care system and overwhelming state governments, but that isn’t deterring a group of 18 state attorneys general from plowing ahead with a lawsuit that could overturn the Affordable Care Act within a year—a move that could disrupt the health care system at a time of deep crisis.
This fall, Texas Attorney General Ken Paxton is slated to argue in the U.S. Supreme Court on behalf of 17 Republican attorneys general—and against 21 Democratic attorneys general—that Obamacare is unconstitutional and must be struck down immediately.
Representatives for five of those attorneys general—from the states of Arkansas, Georgia, Mississippi, Missouri, and Tennessee—confirmed to The Daily Beast that the coronavirus outbreak has not changed their plans to try and kill the health care law as parties to the case of Texas v. California. Their steadfastness comes even as their states are beginning to feel the acute impact of the coronavirus’ spread. Georgia currently has over 1,700 coronavirus cases, while Tennessee has nearly 1,000 and the others have anywhere from 350 to 600.
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The other 13 state attorney general offices, including that of lead state Texas—where the state’s most populous counties have issued shelter-in-place orders to counter the spread of the coronavirus—either declined to comment or did not respond to requests for comment. None of them have announced any plans to reconsider their participation in the lawsuit.
Their determination to kill the law, no matter the circumstances, mirrors President Trump’s. Asked at a press conference last week whether the virus had changed his plans to press ahead in court, Trump affirmed that "what we want to do is terminate it.”
If the Trump administration and these states succeed in repealing the ACA, the impact on the country’s public health system would be immense, pandemic or not. That the decision could come early next year—at the tail end or recovery stage of a devastating outbreak—gives it a seismic significance for the 20 million Americans covered by the law, the 84 million who are uninsured or under-insured, and the insurers, hospitals, and governments that have adapted to Obamacare over the course of a decade.
While Congress has passed legislation to provide free coronavirus testing to everyone, health insurance to cover related treatments and other ailments is another matter. Last week, an uninsured Boston woman who contracted COVID-19 and went to the hospital was sent a bill for $35,000. On Wednesday, the mayor of Lancaster, California, confirmed that a 17-year old boy died from COVID-19 after a local hospital turned him away for treatment because he didn’t have insurance.
Unless legislators step in with a ready-made replacement for Obamacare—which is unlikely—at least 20 million Americans would lose their coverage if the Supreme Court strikes it down.
The Democratic attorney general leading the defense of the ACA in court, Xavier Becerra of California, has said that “no one should want to risk access to public health” in the “new reality” created by the COVID-19 outbreak.
“The only thing worse than a public health pandemic is a public health pandemic without health care,” said Jesse Ferguson, a Democratic strategist. “It's hard to imagine their sales pitch for a lawsuit that takes away health care for 20 million Americans as we face a pandemic. It's like watching the Chernobyl disaster and deciding to bulldoze the fallout shelters.”
The crux of the latest effort to unravel Obamacare focuses on the law’s so-called “individual mandate” that all Americans purchase health care coverage or face a steep tax penalty. Since the 2017 GOP tax law made that penalty toothless, Texas and company argue that the government can’t force a mandate that isn’t backed up by its authority to tax. Even conservative legal scholars have called this case far-fetched, but a string of GOP-appointed federal judges have ruled in favor of it, sending the matter to the Supreme Court.
Those state attorneys general who confirmed they’ll continue backing the lawsuit largely framed the move as a matter of law, not health care policy.
“When the United States Fifth Circuit Court of Appeals declared the Affordable Care Act’s individual mandate unconstitutional back in December, it provided the answer for which Tennessee, among other states, joined the lawsuit,” said Samantha Fisher, spokesperson for Tennessee Attorney General Herbert Slattery. “It’s always been a question of legality, not health care policy. And that remains our position.”
Others merged those arguments. “Two different courts have now agreed with us that the ACA is unconstitutional,” said Georgia Attorney General Chris Carr in a statement to The Daily Beast. “Georgians and all Americans deserve better—a constitutionally sound law that improves health outcomes, protects pre-existing conditions, increases choice and lowers costs.”
“Thankfully the Supreme Court has found it necessary to review our case,” said Arkansas Attorney General Leslie Rutlege in a statement. “Once the Affordable Care Act with its unconstitutional mandate [is] behind us, time will come for Congress to move forward and create a comprehensive healthcare law that will work with states and provide coverage for those with pre-existing conditions.”
Should the Supreme Court strike it Obamacare, Capitol Hill would have to step in with a replacement for the ACA—which in itself poses another major problem. When Republicans controlled both chambers of Congress in 2017, they were unable to pass their own Obamacare replacement. Since then, key GOP lawmakers like Sen. Lamar Alexander (R-TN), chairman of the Senate Health Committee, have taken more steps to shore up the law than to dismantle it.
Alexander has been critical of the Republican states’ argument in the Texas case, calling it “as far-fetched as any I’ve ever heard.” He and other GOP senators have expressed dismay that their vote for the GOP tax bill is now being used effectively as a vote to repeal Obamacare.
After hearing arguments this fall, the Supreme Court could render a ruling in the case as early as spring of 2021. It’s unclear how long the coronavirus public health emergency will last, but it’s widely accepted that the U.S. will be dealing with its fallout for months, if not years, after it tapers off.
Tara Straw, a health care analyst at the left-leaning Center for Budget and Policy Priorities who has studied the Texas case, said that pressing ahead with efforts to overturn the ACA right now is “unconscionable.” She predicted the decision could have far-reaching consequences: if the coronavirus outbreak spurs a long period of high unemployment, for example, far more than 20 million people could lose coverage if the ACA is struck down.
That could also shift heavy cost burdens to state governments that are facing long-term financial stress because of the crisis, and hurt broader recovery if people are directing more of their income to medical care.
“Talk about compounding a crisis,” said Straw.
