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Suddenly Everyone Is Defending the Affordable Care Act

How, if at all, would you like to see the U.S. health care system revised?

by Axios | Updated on 12.17.18

Now that federal Judge Reed O'Connor has ruled the entire Affordable Care Act is unconstitutional — since Congress zeroed out the penalty tied to the mandate to buy health insurance — the health care law once again has to show it has an extra life in its back pocket.

The big picture: If O'Connor's ruling stands — or takes effect before an appeal — it would kick millions of people off of private insurance and millions more off of Medicaid, and would eliminate protections for people with pre-existing conditions.

But the ripple effects would go much further:

  • The ACA created the FDA approval pathway for a class of cheaper prescription drugs known as biosimilars, developed the database that shines light on payments that drug and device companies make to doctors, reauthorized the Indian Health Service and required calorie counts on some restaurant menus.
  • Even under the Trump administration, Medicare is relying on parts of the ACA, like the CMS Innovation Center, to shift the health care system toward new payment models.

Between the lines: This time, the knives are coming out from all sides to defend the ACA.

  • Democratic attorneys general have vowed to appeal.
  • Pretty much every trade group is befuddled by the decision. The American Medical Association called the ruling "a stunning display of judicial activism." (However, the Council for Affordable Health Coverage, a conservative group funded by dozens of major companies, viewed this as "an excellent opportunity.")
  • Legal experts who have opposed and supported the ACA almost uniformly agree the judge's legal rationale is flawed or "indefensible."
  • The biggest problem is the ruling ignores a well-established legal principle that courts should be cautious about striking down an entire law because of a problem with one piece of it. Law professors Jonathan Adler and Abbe Gluck wrote about this in the New York Times this weekend. (Adler supported the 2012 and 2015 legal challenges to the ACA.)

This case also has caused internal trouble at the Department of Justice. Bob got in touch with Joel McElvain, one of the three career DOJ attorneys who withdrew from this case this summer when President Trump's DOJ said it wouldn't defend the law.

  • McElvain confirmed he resigned from the DOJ due to his objection to the agency's decision not to defend the ACA, but he declined to comment further on the case.

Our thought bubble: Democrats will make the case that they are the party that protects pre-existing conditions, while Republican messaging on the case — and more broadly, their health care platform — will be muddled at best.

  • While there may be some push to have solutions ready to go if the ACA ultimately gets struck down, the idea that a divided Congress is going to be able to agree on something like that is laughable.

What's next: An appeal would go to the Fifth Circuit Court of Appeals, which is considered one of the more conservative appeals courts. If the Fifth Circuit agrees with this latest ruling, it'd be up to the Supreme Court to decide if it wants to hear the case.

The bottom line: We are still a long way from the Supreme Court intervening, and the ACA is still technically the law of the land while this plays out.

Axios

Written by Axios

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(40)
  • Hanno
    12/17/2018
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    Obamacare is not perfect, but until another solution comes along, we cannot take away health insurance.

    Like (22)
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  • John
    12/17/2018
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    Universal single payer healthcare, cradle to grave.

    Like (14)
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  • Josh
    12/17/2018
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    ACA allowed all veterans to receive care through VA services. I did not have these services as a veteran before ACA because I didn’t serve at least 10 years. As a veteran living just above the poverty line, it has been a godsend for me. It would work if people wouldn’t keep trying to kill pieces of it.

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  • Lisa
    12/17/2018
    ···

    Single Payer Medicare 4 All and that it does include things like Prescriptions Coverage, Dental, Vision, Hearing (including HearingAids) etc!

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  • Lionman
    12/17/2018
    ···

    We need to more closely explore the Single Payer System that our President has praised from Ireland. Competition doesn’t seem to work in Health Insurance and Health Care, because it has just driven costs and profits higher and higher. Is healing an industry that we want to be one driven by profit, or by the gratefulness of having been healed?

    Like (7)
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  • KansasTamale
    12/17/2018
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    1 STOP CHOPPING UP the ACA 2 Work with ALL CONGRESS PEOPLE TO MAKE ACA VIABLE 3 STOP the INSURANCE COMPANIES CONTROL OF ACA. 4 Make ACA affordable by having tiers of payments by income. 5 Make sure all PRE-EXISTING CONDITIONS ARE COVERED. 6 COVER EVERYONE - No signing up. If a person has s SS card they are signed up THAT WILL SAVE MILLIONS. 7 COVER PREVENTATIVE MEDICINE 8 COVER END OF LIFE BY EXTENDING LIFE IF AT ALL POSSIBLE OR ASSISTED DEATH IF WISHED. 8 create ONE SINGLE PAY SYSTEM with a MEDICAL PROFESSIONAL AS THE HEAD. 9 MAKE ALL STATES EXPAND MEDICARE TO HELP PAY FOR THE COSTS. THESE ARE JUST A START

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  • joshuatucker
    12/17/2018
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    I know you hate literally anything which helps people, Mr. Walberg, but I plead with you to defend the ACA’s protections for Americans with pre-existing conditions, young adults’ ability to stay on their parents’ insurance, etc.

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  • Donelle
    12/17/2018
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    The ACA was meant to be a stepping stone for health insurance reform. You know regular checkups, mammograms, colonoscopies etc. most of all to insure people with pre existing conditions would be treated fairly. A first step to catching up with the civilized world. Look at the states like Kentucky and how well it is working. We need to get rid of gaining profit for people to be sick - you can go bankrupt if someone in your family gets really sick / this should not be happening in America in 2018!!!

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  • Milan
    12/17/2018
    ···

    I would ideally like to see single payer - but let’s at least implement the ACA in the manner it was intended. To protect the most vulnerable in our society from insurmontable health care costs. Fix the ACA - stop kicking it until it’s completely broken. Here’s an idea - talk to each other and find a compromise

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  • Aimee
    12/18/2018
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    So sick of the gop attacking health care and doing nothing! You have had two plus years to do something Fred upton! Your party has no better plan. All government employees should have the same health care as the rest of us! Maybe the gop would do something if you had our health care and not special health care! You all have pre existing conditions too

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  • I.Got.an.Idea...
    12/17/2018
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    Single-payer healthcare for all. The same medical coverage that our congress receives for all. Congress shall be part of the same health program. No deductibles. Max co-pay $10. All medical services are in the same network. You can go to any doctor licensed to provide services in this country and in any state. No maximum amount as long as it is justified. Prescriptions all inclusive. Holistic medical and prescriptions included. Counseling, therapy and mental health all inclusive. Weight loss included.

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  • Robert
    12/17/2018
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    So keep the unaffordable care act with 20 million losers on it that drive up ALL COSTS and don’t pay attention to the 28 million people who have no insurance because it’s unaffordable. Got it. Nice move Democrats.

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  • Miles
    12/17/2018
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    I guarantee most of the people in that picture don’t have or would want Obamacare if they knew how it works. They just see Obama in the name & blindly think it’s a godsend. It’s such a garbage policy, laughable really.

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  • eliyak
    12/17/2018
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    We should move to a direct primary care system, with insurance only for unpredictable emergency expenses. Also, we should allow (re)importing pharmaceuticals which are available in Canada and elsewhere at lower prices.

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  • Linda
    12/18/2018
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    People with preexisting conditions must have insurance that covers those and all health problems. That’s the reason people have insurance. Everyone in America should have access to good healthcare. Healthcare should not be a for profit industry.

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  • Mark
    12/17/2018
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    It’s simple, move to a Medicare For All system by keeping the pharmaceutical and health insurance industry out of government from dictating health care policy for America.

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  • Terry
    12/17/2018
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    Not everybody. Fake news.

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  • Dua-ken
    12/17/2018
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    When will you all wake up and stop stealing health care from people who truly need it. I am waiting for the day when you all are voted out of office and replaced with a socialist!

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  • Mary
    12/18/2018
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    We want universal health care for all Americans. Cut back on military spending, work on establishing allies around the planet that care about the common people, the planet and improving the basic needs of all people, tax the 1% ninety percent, and come down hard on corporations instead of giving them tax breaks. Use the money from the legalization of marijuana to help fund drug rehab, health care and mental health. Think outside the box and stop only caring about with money. Walk the talk.

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  • Christine
    12/18/2018
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    The Affordable Care Act is the law of the land. It was never declared perfect and was passed with the intention of improving it. This flawed decision will be appealed and will backfire badly on djt and his GOP lapdogs.

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