ACA in Limbo After New Individual Mandate Ruling

In yet another blow to the ACA, the U.S. Court of Appeals for the 5^th Circuit ruled the individual mandate, or the law’s requirement that individuals have healthcare coverage, is unconstitutional. In addition to this long-awaited decision, the panel also stated it will send the case back down to a lower court in order to determine whether the law can stand without the individual mandate provision. Legal and healthcare experts believe this move all but ensures that this case will eventually end up on the Supreme Court docket-and continued uncertainty for tens of millions of Americans who rely on the law for health insurance as the suit winds its way through the courts.

Filed in early 2018 on behalf of a group of Republican governors and state attorneys general, Texas v. United States made the argument that Congress’ elimination of a tax penalty for not having insurance, the ACA’s stick to help enforce coverage, rendered the law unconstitutional. They stated that, as the 2012 Supreme Court decision upholding ACA did so on the basis of Congress’ constitutionally mandated taxing powers, the lack of a tax penalty makes all the tenets of the healthcare legislation null and void. A U.S. District Judge, Reed O’Connor, agreed with that argument late last year, ruling the entire law unconstitutional. The ruling was immediately appealed to the higher court by a coalition of Democratic-led states.

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In yesterday’s decision, two of the Republican-appointed judges on the 5th Circuit panel stated that Americans cannot be compelled to buy healthcare coverage as “the attributes that saved the statute because it could be read as a tax no longer exist.” Yet, the judges did not fully support O’Connor’s read of the case. As such, they will be returning the suit back to U.S. District Court for the Northern District of Texas to answer two key questions: First, which parts of the ACA “are indeed inseverable” without a tax-enforced mandate and, second, whether the ruling should only apply to the Republican-led states that brought the original suit to overturn the law.

California Attorney General Xavier Becerra, who leads the group who is working to save the health law, has already announced that he will appeal the decision to the Supreme Court. Supporters of the law say, even without the tax penalty, the law works well and is helping millions of Americans lead healthier lives. They hope that the Supreme Court will see that and rule for the ACA.

But nothing is certain. To date, the highest court in the land has upheld the ACA in two separate cases. But with the addition of two new Trump appointees, a third legal victory is nowhere near guaranteed -and any changes to the law could have widespread implications for the entire healthcare industry, especially around the ACA’s protections for pre-existing conditions and lifetime caps for coverage.

Kayt Sukel is a science and health writer based outside Houston.