In a move that could put the Obama-era health law squarely in the middle of the 2020 election, Democratic-led states Friday asked the Supreme Court for a fast-track review of a recent court ruling that declared part of the statute unconstitutional and cast a cloud over the rest.
A coalition of 20 states led by California Attorney General Xavier Becerra filed a petition seeking expedited review. They hope to get a Supreme Court hearing and decision by this summer, before the November elections. For the court to agree to such a timetable would be unusual, but not unprecedented.
Defenders of the Affordable Care Act are arguing that the issues raised by the case are too important to let the litigation drag on for months or years in lower courts, and that the 5th U.S. Circuit Court of Appeals in New Orleans erred when it struck down the health law's now toothless requirement that Americans have health insurance.
“The lower courts’ actions have created uncertainty about the future of the entire Affordable Care Act, and that uncertainty threatens adverse consequences for our nation’s healthcare system, including for patients, doctors, insurers, and state and local governments,” according to the states' filing.
There was no immediate reaction from the Trump administration. President Donald Trump had declared the appeals court ruling a victory.
While finding the health law's individual mandate to be unconstitutional, the 5th Circuit made no decision on such popular provisions as protections for people with preexisting conditions, Medicaid expansion, and coverage for young adults up to age 26 on their parents' policies.
The 2-1 appeals court decision left the health law in effect for now. Open enrollment season for 2020 has been able to proceed without disruption.
The 5th Circuit sent the case back to a lower court judge who has already decided once to throw out the entire health care law. The appellate court asked Texas-based U.S. District Judge Reed O'Connor to determine whether other parts of the law can be separated from the insurance requirement, and thus remain in place.
About 20 million people now have coverage through the ACA, including its subsidized private insurance and Medicaid expansion. But the 900-page law also made many changes to other programs, from Medicare, to community health centers, to fraud-fighting efforts. Sorting out what might stay and what might go with the insurance mandate would be a colossal effort.
The 5th Circuit found that the requirement to carry insurance was rendered unconstitutional when Congress in 2017 eliminated the tax penalty for people going without coverage.
A revival of the “Obamacare" debate could put Republicans running for reelection this year in an uncomfortable spot. Their party was unable to repeal and replace the ACA when it controlled Congress, because Republicans couldn't agree among themselves on what a replacement would entail. Democrats rode the issue to win control of the House in the 2018 elections.
It would take the approval of five justices for the Supreme Court to hear the appeal on an expedited schedule.
If the justices did take the case, it would mark the third Supreme Court review of the health law. The five justices who upheld the law the previous two times are still on the court.
The District of Columbia joined the 20 Democratic states seeking Supreme Court review.