Court to consider health care law appeal

WASHINGTON — The Supreme Court will hear a third challenge to the Patient Protection and Affordable Care Act, this time at the request of Democratic-controlled states that are fighting a lower court decision that said the entire law must fall.

The court’s review will come in the term that begins in October, which would not leave time for a decision before the November presidential election. The law remains in effect during the legal challenges.

Democrats are eager to keep public attention on the fate of the act, sometimes called “Obamacare,” which has features voters value, such as required coverage for preexisting conditions. Health care is a leading concern, especially among Democratic voters, and many considered it a persuasive argument when the party won control of the House in 2018.

The House and Democratic-led states asked the court to review a decision last year by a panel of the U.S. Court of Appeals for the 5th Circuit.

Hearing a challenge from Texas and other Republican-led states and backed by the Trump administration, the panel struck down the law’s mandate that individuals buy health insurance but sent back to a lower court the question of whether the rest of the statute can stand without it. The lower court had said the entire law must fall.

The House told the Supreme Court that the 5th Circuit decision “poses a severe, immediate, and ongoing threat to the orderly operation of health-care markets throughout the country, casts considerable doubt over whether millions of individuals will continue to be able to afford vitally important care, and leaves a critical sector of the nation’s economy in unacceptable limbo.”

The House and Democratic states also have been eager to get the issue before the Supreme Court because the majority that has upheld the Affordable Care Act in two previous challenges remains.

President Donald Trump’s solicitor general, Noel Francisco, replied that the 5th Circuit decision simply preserved the status quo until a lower court could look more closely at which parts of the law should survive. He said it would be premature for the high court to intervene.

The Supreme Court earlier had turned down a motion by the House and Democratic challengers to hear the case this term.

“As Texas and the Trump Administration fight to disrupt our healthcare system and the coverage that millions of people rely upon, we look forward to making our case in defense of the ACA,” California Attorney General Xavier Becerra, whose office had led the Democratic effort, said in a statement after the court’s announcement. “American lives depend upon it.”

The latest challenge began when congressional Republicans, lacking the votes to repeal the Affordable Care Act, removed the penalty for an individual who does not buy health insurance.

Republican attorneys general argued that by reducing the penalty to zero, Congress had removed the essential element that made the program constitutional, and that the entire statute must fall.

A Texas judge agreed. The Trump administration first argued that the individual mandate could be severed from the rest of the law, but then changed its stance and urged the appeals court to strike the entire law.

Democratic states then stepped in. They said Congress’s action did not nullify the law, and made clear that even if the mandate itself must fall, the rest of the law should stand. When Democrats took control of the House, they joined the effort to defend the law.

At the 5th Circuit, a panel split 2 to 1 on the question. Two judges agreed that the mandate was void, but sent the case back to the district judge to decide what parts of the law could still stand.

The third judge said that the mandate elimination made no difference, and that Congress had been clear it was not repealing the rest of the law.

It will be the third major challenge to the law.

In 2012, the court upheld the mandate that most Americans obtain insurance or pay a penalty, saying it fell under Congress’s taxing power. Chief Justice John Roberts joined the court’s liberals in the 5-to-4 decision, drawing the lasting enmity of some conservatives.

In 2015, those five justices — all still on the court — were joined by Justice Anthony Kennedy, who is now retired, in upholding the law against another challenge. It involved tax subsidies.