A federal judge’s ruling late Friday that the Affordable Care Act is unconstitutional is raising questions for tens of millions of Americans who depend on the law for their health insurance.
However, the law has not been invalidated yet, and the White House, Healthcare.gov, and the U.S. Department of Health and Human Services have said that 2019 enrollment will proceed as planned. Most legal experts agree that the law will likely stand, at least until it is reviewed by the Supreme Court. The high court is unlikely to hear the case until 2020, the Associated Press reported.
Abbe Gluck, a Yale Law School professor who specializes in health law, tells TIME that the federal judge in the case, Reed O’Connor, has overstepped by attempting to reshape the law.
While she feels that the ruling is unlikely to survive an appeal in the circuit court or in the Supreme Court, she says that the political heft of the Affordable Care Act means that it is vulnerable to political attacks.
“The statute carries such political and legal traction that you never can become complacent,” said Gluck.
If the 2,000-page law dubbed “Obamacare” is repealed, Gluck says, it will have serious consequences across the healthcare system— not only for people on Medicaid, but also for those on private insurance, insurance through their workplaces, or on Medicare.
“All of those laws will have gaps now, and people will be paying more and losing coverage,” Gluck says.
She notes that many people are unaware that the benefits of the law touch the entire health system, and include provisions to keep down the price of drugs for Medicare patients; coverage for children’s vaccines, and preventive services such as cancer screenings.
The judge’s decisions to throw out the ACA also comes as the law is increasingly popular, according to poll data. In 2013, the law had an overall approval rating between 33% and 39%, according to Kaiser Family Foundation polls. By 2018, the approval rating rose to 53%, and many Democrats in the November midterm elections ran on protecting the law.
Here’s what you need to know about the ruling, and what it means for your health insurance.
Why did a federal judge in Texas rule the Affordable Care Act is unconstitutional?
To understand O’Connor’s argument, one must look back to the 2012 Supreme Court Case National Federation of Independent Business (NFIB) v. Sebelius, in which the court considered the constitutionality of the Affordable Care Act. Two major provisions of the ACA were reviewed: the individual mandate, which required individuals to buy a minimum level of health insurance; and the expansion of Medicaid.
The ruling did not ultimately strike down any provision of the Affordable Care Act. The court found that that the individual mandate was constitutional under Congress’s taxation power. At the same time, a majority of the judges agreed that the expansion of Medicaid was unconstitutional because states hadn’t received enough notice to consent to the change. Nevertheless, the court ruled that the Medicaid provision could survive if the Health and Human Services Secretary had limited power to enforce the law— which in practice made the expansion optional for states.
In his ruling, Texas Judge O’Connor argued that since Congress eventually eliminated the individual mandate, the Affordable Care Act is no longer constitutional under Congress’s taxation power.
However, many legal experts, including Gluck, have argued that O’Connor’s ruling is on shaky ground.
Gluck says the Texas federal judge threw out the entire law on the grounds that Congress had never intended for the law to exist without the individual mandate. Eliminating the entire Affordable Act wasn’t the purpose of eliminating the individual mandate, Gluck says; the legislators only intend to alter it.
“A later Congress is entitled to amend the law,” Gluck says.
Will the ruling affect my health insurance under the Affordable Care Act?
The Affordable Care Act will stay in place until the appeals process is completed— and the case will possibly go before the Supreme Court. For now, at least, people with preexisting conditions, young adults between 21 and 26, and others who have been able to enroll in health insurance under the law will remain protected.
The U.S. Department of Health and Human Services said in a statement that it will continue to uphold the Affordable Care Act until the courts reach a final decision.
“HHS will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision,” the statement said. “This decision does not require that HHS make any changes to any of the ACA programs it administers or its enforcement of any portion of the ACA at this time.”
White House Press Secretary Sarah Sanders said that the law will stay in place until the appeal process is completed.
“The judge’s decision vindicates President Trump’s position that Obamacare is unconstitutional,” Sanders said in a statement. “Once again, the President calls on Congress to replace Obamacare and act to protect people with preexisting conditions and provide Americans with quality affordable healthcare.”
How does the ruling affect open enrollment?
For the time being, open enrollment for 2019 is going forward as planned, although in 39 states, the deadline for the Affordable Care Act was Dec. 15.
However, 11 states— California, Colorado, Connecticut, Idaho, Maryland, Massachusetts, Minnesota, New York, Rhode Island, Vermont and Washington— and Washington, D.C. have their own marketplaces, as well as their own deadlines. Connecticut also expanded its enrollment deadline until Jan. 13 in response to the ruling on Friday.
To check the deadline for your state, visit the website of Healthcare.gov.
What should I do if I missed the deadline for enrollment?
People seeking certain kinds of insurance may still be able to apply. Americans can apply at any time for Medicaid or the Children’s Health Insurance Program (CHIP).
Some may also qualify to apply during the Special Enrollment Period. This applies to those who have missed the deadline because of a life event, such as getting married or divorced; experiencing a natural disaster; having a child; or the death of someone on their marketplace plan.
Where does the law stand now?
In some ways, the Affordable Care Act is stronger than ever. The number of Americans without health insurance has fallen from 18.2% in 2010 to 10.2% in 2017, according to analysis by the Kaiser Family Foundation. The expansion of Medicaid in certain states also drove up enrollment, rising from 72.4 million last year to 75.1 million in 2018.
However, the Trump Administration’s efforts to dissuade people from applying to federal and state exchanges appears to also be having an effect. Enrollment in the exchanges is down as much as 12% compared to last year, according to analysis by the nonprofit Get America Covered, a group that advocates for expanding the Affordable Care Act.
The number of uninsured non-elderly Americans has dropped significantly since the Affordable Care Act was instituted— from more than 44 million in 2013 to 27 million in 2016.
Brad Woodhouse, president of Protect Our Care, an advocacy group that supports the Affordable Care Act, says he will not feel confident about ACA’s future the Supreme Court rules on this latest challenge to the law.
“I don’t take a lot of comfort in what people think will happen,” Woodhouse says. “The consequences would be dire.”
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