For months, congressional Republicans have ignored the Texas-led lawsuit seeking to overturn the Affordable Care Act. With the midterm elections looming, talk of the case threatened to reopen wounds from failed attempts to repeal the law. Not to mention that legal experts have been panning the basis of the suit.
But that's all changing as the ACA faces its day in court … again. The queasy feeling of uncertainty that surrounded the law just one year ago is back. The level of panic setting in for the industry and lawmakers is pinned to oral arguments set for Sept. 5 in Texas vs. Azar. Twenty Republican state attorneys general, led by Ken Paxton of Texas, are seeking a preliminary injunction to halt enforcement of the law effective Jan. 1. Their argument is built around the Supreme Court's 2012 ruling in which Chief Justice John Roberts said the law is constitutional because it falls under Congress' taxing authority. The AGs have seized on the congressional GOP's effective elimination of the individual mandate penalty in the 2017 tax overhaul as grounds to invalidate the law.
They have the Trump administration on their side, in part. The Justice Department in June filed a brief arguing that the individual mandate as well as such consumer protection provisions as barring insurance companies from denying coverage to people with pre-existing conditions are unconstitutional. But the department stopped short of suggesting that the entire law be vacated.
Conservative U.S. District Judge Reed O'Connor will hear the case in Austin, Texas. O'Connor has already ruled against an ACA provision that prohibited physicians from refusing to perform abortions or gender-assignment surgery based on religious beliefs, and he is considered a wild card.
Even ACA supporters who downplay the legal standing of the case are bracing for the possibility that O'Connor will side with the plaintiffs, who ultimately see a path to the Supreme Court.
Republicans, meanwhile, are trying to head off a potential political storm. A coalition of Senate Republicans led by Sen. Thom Tillis of North Carolina introduced a bill to codify guaranteed issue for people with pre-existing conditions into HIPAA laws. But they left out the key mandate that insurers can't exclude coverage of treatment for pre-existing conditions. That omission left health insurers scratching their heads and Democrats came out swinging, with Democratic Sen. Claire McCaskill of Missouri dubbing the measure “a cruel hoax.”
The politics around coverage protections will really start to matter for Republicans should O'Connor signal support for the plaintiff states, according to Rodney Whitlock, a Washington healthcare strategist and former GOP Senate staffer. “It ups the pressure considerably,” he said. “There's no question it complicates things for Republicans if a decision comes down in October.”
Insurers are on the lookout for signs of what could happen next. If O'Connor's decision comes down before open enrollment starts on Nov. 1, the GOP will feel increasing pressure to do something substantive, according to an industry official who asked not to be identified.
Although a ruling striking down the law wouldn't necessarily impact the individual market in 2019, it would spark the kind of massive uncertainty that insurers hate and complained of last year during the GOP repeal-and-replace efforts.
America's Health Insurance Plans filed an amicus brief urging the court to deny the request for a preliminary injunction, citing the massive impact such a move would have on insurers in the individual market, Medicaid managed care and Medicare Advantage plans.
“It creates a lot of impetus for federal or state action,” the insurance official said, noting that insurers would have to rely on HHS to interpret how the law's regulations would apply going forward. If mounting court decisions start to drastically affect the law's mandates, it would fall to HHS how to manage complicated questions around how to follow ACA rules.
HHS and Justice Department officials declined to comment. CMS Administrator Seema Verma in August told McCaskill when pressed at a Senate committee hearing that she would support legislation to protect pre-existing conditions, but she declined to specify how the CMS would respond administratively if the suit succeeds.
For now, lawmakers aren't showing any willingness to take a bipartisan approach. The House GOP plans to introduce a companion bill to the Senate measure, Tillis told Modern Healthcare last week. Meanwhile Democrats have made hay over the fact that the protections in his legislation are incomplete. Tillis said leaving out the prohibition of coverage exclusions was not intentional and GOP senators would look again at the bill if the lawsuit advances.
He added that he envisions the legislation as just one piece that could build into a bigger overhaul effort, and wants to see protections of other popular provisions such as allowing people up to age 26 to stay on their parents' health insurance.
“It's similar to what we talked about last year,” Tillis said, referencing the 2017 repeal-and-replace efforts. “Any sort of court challenge that would cause a precipitous voiding of Obamacare would leave a lot of people in the lurch, and one of those areas is pre-existing conditions.”
Sen. Bill Cassidy (R-La.), who spearheaded the last major GOP effort to repeal and replace the ACA last year, also said he would want to look at more comprehensive legislation if the lawsuit advances. “I certainly would,” Cassidy said. “I can't speak for all, but I do think there would be a drive to.”
How Republicans will move past messaging and into action remains to be seen, Whitlock said.
“If you think of the seminal moments of 2017, you think of pre-existing conditions and the Jimmy Kimmel test,” Whitlock said, referencing the talk show host's attack on the repeal-and-replace effort following emergency heart surgery for his newborn son. “This was a big deal because people were concerned. It is a very important issue, and it's also one that Republicans have tried to say in every bill that they're trying to protect. They have been successful to varying degrees in making that case. But with the Texas lawsuit, there's no protecting it. It says, throw out the entire ACA root and branch.”
And as nomination hearings for Supreme Court nominee Brett Kavanaugh get underway Sept. 4, Democrats will keep using the GOP's dilemma as a cudgel. McCaskill, for instance, is leveraging the issue in her neck-and-neck race against Missouri Attorney General Josh Hawley, who is part of the lawsuit.
“How do you have a pre-existing conditions bill that says we're not going to protect someone with a pre-existing condition?” she told reporters last week. “It's embarrassing, it's the Potomac two-step. Do they think nobody's paying attention? They're just trying to cover themselves politically, isn't it obvious?”
And then there's the other political dilemma for Republicans who want to show they can secure Obamacare's protections: convincing their base that they still fundamentally oppose Obamacare even if they don't want to talk about repeal-and-replace anymore.
“You can be sure there are folks out there who really desperately don't want to see the Texas side laughed out of court,” Whitlock said. “It destroys the whole narrative about the lawsuit. It's this bizarre dynamic where an obscure lawsuit that has no legal basis whatsoever leaves the opportunity to talk about” repeal.
He added: “There are people who are flat-earthers on ACA, still preaching complete and total repeal.”