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What’s next in legal drama over the Affordable Care Act?

NEW ORLEANS — The federal appeals court ruling striking down the Affordable Care Act’s requirement that people have health insurance left hanging key questions about what happens to other provisions of the law, like coverage for preexisting conditions.

President Barack Obama’s signature health care law remains in legal limbo. But at least for now most of its provisions remain in effect.

The decision Wednesday by the 5th U.S. Circuit Court of Appeals in New Orleans sent the case back to a federal district court judge who had declared the entire law invalid because there was no longer a tax on people without health care. It will now be up to Judge Reed O’Connor to parse out what of the ACA should survive.

But don’t expect that to be the final word on a piece of legislation that provides coverage to about 20 million people and affects coverage for millions more:


It’s a bit uncertain.

The appeals court told O’Connor to go over the ACA with a “finer-toothed comb” to determine which provisions of the legislation could be severed from the individual mandate, but Democratic attorneys general are weighing whether they want to appeal the case directly to the Supreme Court, which twice before has upheld the law. It’s a different court now, with a more conservative bent, but the same five justices who upheld the heart of the law in 2012 remain.

California Attorney General Xavier Becerra, who is leading a coalition of states in defending the law, said Thursday that he and members of the coalition were conferring on how to proceed and would make a decision soon — meaning a Supreme Court appeal was not a certainty.

But Becerra emphasized that he thought it was imperative to act quickly in order to give certainty to health care consumers and said he’d like to get the case in front of the court by this spring.

“It’s time to stop this uncertainty and give Americans what they deserve,” he said.

Tennessee joined the states seeking to do away with Obamacare. After the Fifth Circuit’s ruling this week, Tennessee Atty. Gen. Herbert H. Slatery III issued this statement:

“This has always been a question of legality, not health care policy. …The Fifth Circuit’s opinion has provided the answer for which Tennessee, among other states, joined this lawsuit. The individual mandate is unlawful.”


It’s hard to say.

Nicholas Bagley, a Universitiy of Michigan law professor, said generally the Supreme Court doesn’t like to wade into cases where a lower court hasn’t come up with a final ruling. But Bagley emphasized that when it comes to the ACA, the normal rules don’t necessarily apply: “It’d be really bad to have a gigantic cloud hanging over the ACA for another two or three years.”


If the case is heard this spring, that means the court would potentially make a decision on the fate of a key piece of healthcare legislation before the 2020 elections — something that could likely play into voters’ minds as they went to the polls.

But Josh Blackman, a law professor and Obamacare critic who has written two books about the ACA, said progressives on the court may want to move quickly. But he doesn’t think Chief Justice John Roberts — who’s already played a key role in both ACA decisions the Supreme Court has already made — will want to expedite this case at a time when other things like impeachment are already on his plate.

“The chief justice is in the driver’s seat,” Blackman said.


The 5th Circuit’s Wednesday ruling didn’t give a huge amount of guidance as to what Judge O’Çonnor must do when parsing through the ACA to decide what — in legal parlance — is severable from the individual mandate and what is not. Judge Jennifer Elrod wrote that O’Connor has to be more specific about which parts of the law can’t be separated from the mandate, and also must take into account Congress’ decision to leave the rest of the law essentially unchanged when it reduced the penalty for not having insurance to zero in 2017.

Legal analysts point out the challenge ahead of O’Connor who has to wade through a 900-page behemoth of legislation that includes more well-known provisions such as allowing children to stay on their parents insurance until they’re 26 but also lesser-known provisions such as guidelines for calorie counts. It took two years for the Texas judge to hear the case, make a decision, for the appeals court to hear the case and then make their own decision — meaning the case could continue for a few more years at least.

(This Associated Press story, which includes a TSD Newsroom addition regarding Tennessee, is by Rebecca Santana.)

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