To date, 13 lawsuits have been filed against the Patient Protection and Affordable Care Act since its passage nearly a year ago. The plaintiffs have included governors of 28 states and some individuals and groups. Eight of the suits were dismissed outright; two decisions (in federal courts in Virginia and Florida) held that the Affordable Care Act is unconstitutional, especially with regard to its requirement that almost all individuals residing legally in the U.S. must obtain health insurance by 2014. Three other rulings (in federal courts in the District of Columbia, Michigan, and also in Virginia) held that the law is constitutional.
On Jan. 31, U.S. District Judge Roger Vinson in Florida ruled that the law was unconstitutional, and further stated that his decision should be viewed as an injunction. Republican Govs. Sean Parnell of Alaska and Rick Scott of Florida then both announced that they would not comply with any of their states' obligations under the ACA. The Obama administration asked Vinson to rule on whether states could continue with implementation, or whether he really meant his decision to be an injunction. After what for some governors must have been an agonizing month, on March 3, Vinson declared a stay on his decision until the issue could be settled in the federal appellate courts, to which all five rulings are headed.
During the interregnum between Vinson's decisions, many states simply didn't know what to do. Should they continue working toward the formation of health insurance exchanges, where coverage can be purchased beginning in 2014? The state of California has already created an exchange and other states are working on it. Should state insurance commissioners try to ratchet down increases in premiums, which the ACA strongly encourages? What about the high-risk pools that many states—and, in some states, the feds—are operating until the exchanges are up and running and insurers can no longer discriminate against people with pre-existing conditions? The Massachusetts Legislature is considering regulations for accountable care organizations. Some states are pursuing alternatives to Medicaid, as the law allows.
It was, and is, a bit of a mess. Indeed, in staying his ruling, Vinson wrote that “it would be extremely disruptive and cause significant uncertainty” if his decision forced states to stop implementation. Of course, some states were dying to do just that, whereas others probably had no intention of stopping, ruling or no ruling. After all, with five federal judges having issued conflicting decisions, it's not like the legal situation is crystal-clear.
Unless there is some miraculous meeting of the minds of appellate courts in five cases, the issue is headed to the U.S. Supreme Court, perhaps this year and perhaps next (that should make the presidential election contest even more entertaining). The court will likely take the case, but there is always the outside possibility that it will decline, in which case all the appellate decisions—whatever they turn out to be—will stand in their respective judicial districts, which encompass multiple states.
What fun for the governors and other state leaders! Parnell and Scott will have to proceed with the ACA implementation, although I suspect the sound of foot-dragging will be heard. Vermont, which is considering a single-payer system, can probably continue to do so. The Obama administration has signaled that it may allow Republican Arizona Gov. Jan Brewer to drop as many as 250,000 people from its Medicaid program, but won't they have to be re-enrolled when, and if, Medicaid eligibility is greatly expanded under the ACA in 2014?
And what about the internal scraps in states? The Democratic governor of Washington state wants to implement the law; the Republican attorney general does not. The Democratic attorney general of Arizona did not want to file suit against the law; Brewer and the Legislature did.
Health policy has always been the source of profound federal-state tensions—Medicaid comes to mind. But this situation borders on the ridiculous. To allow this limbo to hang around, potentially for two more years, helps no one.
Emily Friedman is an independent health policy and ethics analyst in Chicago.
