A federal judge in Texas (Judge Reed O’Connor) dealt a blow to the Affordable Care Act late last week when he ruled in Texas v. Azar that the ACA is unconstitutional in its entirety- including the implementation of market reforms (e.g. protections for folks with pre-existing conditions), the health insurance marketplaces, and the expansion of Medicaid.
Fortunately, he didn’t issue an injunction ordering the Administration to stop implementing the law- so the ACA will remain the law of the land for now.
Back in February, 20 states (including Arizona) filed the lawsuit seeking to invalidate the 3 legs of the ACA stool: pre-existing condition exclusions, community rating, and guaranteed issue.
The ACA prevents health insurance companies from: 1) denying someone health insurance because they have a preexisting condition -called the “guaranteed issue” requirement; 2) refusing to cover services that people need to treat a pre-existing condition- called “pre-existing condition exclusions”; and 3) charging a higher premium based on a person’s health status - called the “community rating” provision.
The U.S. Department of Justice isn’t defending the ACA because they agree with the plaintiff States. In fact, the Justice Department has urged the court to strike down the law. Luckily, several states including CA are defending the law.
The Plaintiffs (including AZ) argue that since the new federal tax reform law removed the financial penalty for not having health insurance, the ACA is now unconstitutional.
So, Will the Supreme Court Uphold the ACA Again?
Last week’s ruling isn’t the last word. The case will certainly be appealed in the federal appellate court system and then to the US Supreme Court, which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.
Since then, Justice Gorsuch replaced Justice Scalia and Justice Kavanaugh replaced Justice Kennedy. Both Scalia and Kennedy voted against the ACA- so not much on that score has changed.
Chief Justice Roberts voted with the majority that upheld the law. His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year's federal tax overhaul, pulling out the structure that Roberts used in his argument.
In the 2012 Ruling, Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax… because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
Roberts rejected the Administration's argument that the federal government's authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).
The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Chief Justice Roberts views the ACA as fundamentally different now that the financial penalties for not having health insurance are gone.
What Happens in AZ if the ACA Goes Away & How Can We Prepare?
It's easy to see how the ACA could end up being struck down in a couple of years once this case gets to the highest court. Gone would be the health insurance market reforms like protection for folks with pre-existing conditions, community rating pricing and guarantee issue as well as Medicaid expansion and the health insurance marketplaces.
Prior to the ACA, the standards to protect people with pre-existing conditions were determined at the state level. Most states including AZ had very limited protections. Many insurers maintained lists of up to 400 different conditions that disqualified applicants from insurance or resulted in higher premiums. 35% of people who tried to buy insurance on their own were either turned down by an insurer, charged a higher premium, or had a benefit excluded from coverage because of their preexisting health problem.
Fortunately, Arizona is partially in control of our own destiny if the ACA is struck down. We couldn't do much about Medicaid rolling back to pre-ACA levels or the loss of subsidies on the Marketplace, but we could have some control over the market reforms like pre-existing condition exclusions, community pricing, and guarantee issue.
Several states have enacted their own laws to be consistent with the ACA market reforms. Several states (CT, HI, IA, IN, MA, ME, MD, MN, NE, NY, NC, ND, OR, SD, VA, VT) already have their own laws that incorporate some or all the ACA insurance market protections. Arizona could do the same.
The good news is that we have time before the Texas v. Azar case makes it to the Supreme Court. A reasonable first step would be for the Governor to ask the Arizona Department of Insurance, the ADHS and AHCCCS to generate (or commission) a report outlining the real-life impact in Arizona in the event that the Texas v. Azar suit is ultimately successful. The report would also put forward options for state-based health insurance market reform laws that could be enacted to require things like prohibiting pre-existing condition exclusions.
Such a report would give the Arizona State Legislature an analysis with which to evaluate public policy options for state-based market reforms.
I know what you're thinking, it's impossible to pass these kind of market reforms in Arizona. Maybe, but many thought that Arizona's expansion of our Medicaid system back in 2013 was impossible.
That case study shows that with the right kind of leadership on the 9th floor, anything is possible.