A coalition of 20 states led by California Attorney General Xavier Becerra filed a petition seeking expedited review, joined by House Democrats and Washington, D.C. They hope to get a Supreme Court hearing and decision by this summer, before the November elections. For the court to agree to such a timetable would be unusual, but not unprecedented.
Defenders of the Affordable Care Act are arguing that the issues raised by the case are too important to let the litigation drag on for months or years in lower courts, and that the 5th U.S. Circuit Court of Appeals in New Orleans erred when it struck down the health law's now toothless requirement that Americans have health insurance.
“The lower courts’ actions have created uncertainty about the future of the entire Affordable Care Act, and that uncertainty threatens adverse consequences for our nation’s healthcare system, including for patients, doctors, insurers, and state and local governments,” according to the states' filing.
There was no immediate reaction from the Trump administration. President Donald Trump had hailed the appeals court ruling, calling it “a win for all Americans.” But many congressional Republicans want to avoid another election-year battle over the ACA, after their unsuccessful effort to repeal it helped flip the House back to the Democrats in 2018.
While finding the health law's individual mandate to be unconstitutional, the 5th Circuit made no decision on such popular provisions as protections for people with preexisting conditions, Medicaid expansion, and coverage for young adults up to age 26 on their parents' policies.
The 2-1 appeals court decision left the health law in effect for now. Open enrollment season for 2020 has been able to proceed without disruption. The 5th Circuit sent the case back to a lower court judge who has already decided once to throw out the entire health care law. The appellate court asked Texas-based U.S. District Judge Reed O'Connor to determine whether other parts of the law can be separated from the insurance requirement, and thus remain in place.
About 20 million people now have coverage through the ACA, including its subsidized private insurance and Medicaid expansion. But the 900-page law also made many changes to other programs, from Medicare, to community health centers, to fraud-fighting. Sorting out whether some provisions could remain while other go with the insurance mandate would be a colossal effort.
The 5th Circuit found that the requirement to carry insurance was rendered unconstitutional when Congress in 2017 eliminated the tax penalty for people going without coverage. Five justices would have to agree for the Supreme Court to hear the appeal on an expedited schedule.
If court does take the case, it would mark its third extensive review of the health law. The five justices who upheld the law the previous two times are still on the court. House Speaker Nancy Pelosi said in a statement that the Supreme Court should not delay, arguing there is no legal or practical justification to leave the case in limbo.
“The Supreme Court should hear this case now and recognize Congress's clear intent to preserve protections for people with pre-existing conditions, and all the other benefits and protections of the Affordable Care Act,” said Pelosi, D-Calif.