Published: Sun, June 10, 2018
Medicine | By Douglas Stevenson

The 'Biggest Health Care News of the Year'

The 'Biggest Health Care News of the Year'

The Trump administration declared that it no longer will defend the Affordable Care Act from a challenge filed by 20 states because it agrees that the law's individual mandate is unconstitutional and that key parts of the act - including the provisions protecting those with pre-existing conditions - are invalid.

A coalition of 20 US states sued the federal government in February, claiming the law was no longer constitutional after last year's repeal of the penalty that individuals had to pay for not having insurance.

At issue is a lawsuit filed by 20 Republican state attorneys general on February 26, which charged that Congress' changes to the law in last year's tax bill rendered the entire ACA unconstitutional.

The Justice Department thus claims that the individual mandate is unconstitutional as of January 1. It argued that the Supreme Court held that the mandate was unconstitutional in 2012 as a legal command, but upheld it as a tax penalty. These include a "ban on insurers denying coverage and charging higher rates to people with pre-existing health conditions". If the Justice Department's analysis is ultimately persuasive, however, other parts of the law, including Medicaid expansion, could stay in place.

On April 26, 2018, the plaintiff states, joined by two individual plaintiffs, asked the court to enter a preliminary injunction invalidating the law.

California and 15 other states also filed a brief Thursday to intervene and defend the ACA and its consumer protections.

Insurers, meanwhile, warned that the administration's actions could rock the individual market and could lead to higher premiums, especially for those battling illnesses.

Bailey's spokesman Corey Uhden said Friday that he wouldn't comment on the constitutionality of the ACA provisions. There is reason to believe the judge may accept the Trump administration's arguments. Tellingly, three career Justice Department attorneys withdrew from representing the United States immediately before filing the brief, apparently unwilling to sign their names to a legally questionable brief.

"The Trump administration once again is allowing premiums to go up and middle class Americans to pay more", Senate Minority Leader Chuck Schumer said in a tweet. He said the department only refused to defend the pre-existing conditions provision as well as one forbidding insurers from charging people in the same community different rates based on gender, age, health status or other factors.

Many advocates spoke out against the Trump administration's stance on the law's consumer protections.

That argument is likely to be lost on consumers, said Robert Blendon, a polling expert at the Harvard T.H. Chan School of Public Health - particularly in the heat of an election that will determine control of Congress.

The Democrats argued that DOJ's refusal to defend the controversial health care law could eliminate protections for millions of Americans with pre-existing conditions and "have profound consequences for patients, the health care system and the American economy". With the repeal of the mandate penalty, the mandate became a simple requirement to buy a service-not a tax-and is therefore not constitutional.

While the case has to play out from here, the administration's striking position raises the possibility that major parts of the law could be struck down - a year after the Republican Congress failed at attempts to repeal core provisions.

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