[V]ermont Attorney General TJ Donovan says he is taking steps to defend the Affordable Care Act following a Texas-based federal judge’s decision to declare the landmark health care law unconstitutional.
Donovan on Tuesday announced that he has joined a multi-state coalition that is asking the Texas court to clarify the effective date of the ruling and to allow for an “immediate appeal.” That appeal, Donovan said, likely will end up in the U.S. Supreme Court.
“Vermont remains committed to defending and preserving the Affordable Care Act,” Donovan said in an interview Tuesday. “It was found constitutional in 2012, and we believe it will continue to remain constitutional.”
The Affordable Care Act, also known as Obamacare, twice has survived challenges in the U.S. Supreme Court – once in 2012 and again in 2015. The Texas ruling, which was issued Friday, may set up the third go-around in the nation’s highest court.
Fort Worth-based U.S. District Judge Reed O’Connor, who has a history of rulings against Obamacare, decided that the entire law is unconstitutional because Congress last year enacted a tax bill that eliminated the financial penalty for the individual mandate as of Jan. 1, 2019. The mandate is part of the Affordable Care Act.
Donovan said he believes the Texas decision, which was hailed by President Donald Trump, is “inconsistent with the law.” In the multi-state filing Vermont has joined, the attorneys general ask the Texas court to either clarify that the Affordable Care Act remains in effect pending appeal or else issue a stay to that effect.
The Texas ruling “already has generated confusion” about whether the Affordable Care Act will remain intact next year, the attorneys general wrote in their brief.
“An order clarifying the import of the court’s ruling would help quell concerns … and provide peace of mind to millions of Americans relying on the (Affordable Care Act) for health insurance in 2019,” the brief says.
Failing that, “the extraordinary circumstances here clearly justify a stay,” the attorneys general wrote. “The (Affordable Care Act) touches nearly every aspect of the nation’s health care system. Treating the court’s order as immediately effective would create widespread harm and confusion.”
As evidence of that harm, the legal brief cites nationwide changes since the law took effect in 2010.
“Nearly 12 million Americans have gained health insurance through the (care act’s) Medicaid expansion, over 8 million others have received (care act)-funded tax credits to purchase health insurance through the newly created exchanges and 133 million Americans (including 17 million children) with pre-existing health conditions have been protected from discrimination by insurance companies,” the attorneys general wrote.
The brief also asks, procedurally, for a quick appeal process. “The interests of all parties, and of the public, will be best served by prompt appellate review,” the document says.
Besides Vermont, the other jurisdictions supporting the brief are California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Virginia, Washington and Washington, D.C.
Vermont policymakers have responded to other recent federal health care decisions with regulations of their own. For instance, the state enacted a health insurance mandate that takes effect in 2020 in reaction to the elimination of the federal mandate’s penalty.
But in this case, some say there’s little the state can do beyond mounting a legal challenge. “We turn to the attorney general,” said Human Services Secretary Al Gobeille. “We’re glad that he is working with other states.”
Though the constitutionality of the Affordable Care Act has been upheld before, “I’m still nervous,” Gobeille said. “This is an incredibly large and impactful law that took years to implement and would take years to unwind.”
Obamacare underpins the basic structure of health care in Vermont. The Texas ruling came a day before open enrollment ended for Vermont Health Connect, the health care exchange created under the care act.
Mike Fisher, the state’s chief health care advocate, said doing away with federal premium tax credits that help Vermonters buy health insurance would be “just disastrous.”
The Affordable Care Act will likely remain in effect while the case is appealed, Fisher said, adding that “it’s going to take a while for this thing to work its way through the courts.”
But he said the Texas ruling still will rattle those who struggle with the health care system.
“Every day, on some level, I hear from Vermonters who are panicked. They have health care needs, and they’re afraid that those needs are not going to be met in one way or another,” Fisher said.
The Texas ruling, Fisher added, “is a disturbing story in the context of a health care system that’s really hard for people to manage already.”
