Earlier this month, the Fifth Circuit Court of Appeals released a long-awaited ruling on Texas v. United States, a court case regarding the future of the Affordable Care Act (ACA). When the lawsuit was filed last year, it was roundly mocked as frivolous by legal experts on both sides of the political aisle.
But fast forward to December 2019, and the case is bound for the Supreme Court of the United States to determine whether or not to overturn the entirety of the ACA — with provisions like pre-existing condition protections, the Medicaid expansion, Medicare prescription affordability and the ability for young people to stay on their parents’ insurance hanging in the balance.
For those who may not be familiar, the case revolves around the individual mandate — the tax penalty for being uninsured. In a different legal challenge to the ACA back in 2012, the Supreme Court determined that the individual mandate is a tax, and, therefore, is constitutional. In 2017, the Trump tax law reduced the penalty to zero dollars, along with giving windfall tax breaks to the richest Americans and corporations. And ACA opponents had a far-fetched idea: Now that the individual mandate costs nothing, it’s no longer a tax which makes the entire ACA unconstitutional. Following? No? That’s because it’s a ridiculous legal argument. At the time, one legal expert wrote, “the Fifth Circuit or the Supreme Court aren’t likely to have much patience for this partisan lawsuit.”
But here we are, with the Fifth Circuit somehow agreeing that the mandate is now unconstitutional and a decent likelihood that large sections of the ACA will be struck down when the case reaches the Supreme Court. West Virginia Attorney General Patrick Morrisey, who is a plaintiff on this lawsuit, referred to the people raising alarms as “fear mongers” and reassured them that nothing changes for now. While he is technically correct, this court decision could have a devastating impact on West Virginia, arguably the state with the most to lose if the ACA falls.
If the ACA is ruled entirely unconstitutional, approximately 162,000 West Virginians would lose their health coverage, 716,400 West Virginians would no longer have any pre-existing condition protections, 50,000 West Virginians would lose access to substance use treatment and the state’s economy would lose $1.045 billion annually, according to an Urban Institute study.
There would be winners, though. As millions across the nation would lose health coverage and protections, the richest Americans would receive $45 billion in tax cuts from ending ACA funding measures.
And despite promises from Morrisey, the White House and leaders in the U.S. Senate, there is no plan to protect states and residents if the ACA is overturned. Earlier this year, Senate Finance Chair Chuck Grassley, R-Iowa, Senate Majority Leader Mitch McConnell, R-Ky., and Senator Susan Collins, R-ME, all acknowledged that there is no plan nor any effort underway to come up with one. In October, Seema Verma, the head of Trump’s Medicare and Medicaid agency, repeatedly dodged questions about the administration’s contingency plans if the law is struck down.
And if there was a plan, surely someone would have shared it publicly by now.
While there is no cure-all to protect West Virginians from the fall out of a negative court decision, there are important steps that could be taken. Morrisey can withdraw West Virginia from this lawsuit that perversely puts our state’s stamp of approval on a court case that could be devastating to hundreds of thousands of our residents. At the state level, lawmakers can enshrine pre-existing condition protections into state code, so that insurers cannot discriminate against residents for their chronic health conditions once again. We should focus on expanding access to health care instead of stripping it away.