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Pandemic Shows Obamacare ‘Indispensable,’ Democrats Tell Justices (1)

May 6, 2020, 6:23 PMUpdated: May 6, 2020, 8:35 PM

Democrats are pointing to the coronavirus pandemic in an effort to persuade the U.S. Supreme Court to save Obamacare.

In the high-stakes litigation that a group of Republican states led by Texas initiated to take down the law, the California-led coalition working to defend it kicked off its opening brief telling the high court that many of the Affordable Care Act’s reforms “have proven indispensable in the context of the current pandemic.”

That same sentiment was echoed by the House of Representatives in its brief Wednesday.

“Although Congress may not have enacted the ACA with the specific purpose of combating a pandemic, the nation’s current public-health emergency has made it impossible to deny that broad access to affordable health care is not just a life-or-death matter for millions of Americans, but an indispensable precondition to the social intercourse on which our security, welfare, and liberty ultimately depend,” the House said at the start of the brief it filed as respondents in support of the blue state coalition that’s defending the law.

Defending the Law

The Supreme Court agreed in March to decide the fate of the ACA after a federal appeals court left the law in limbo. The U.S. Court of Appeals for the Fifth Circuit ruled the provision requiring everyone to buy insurance was no longer a constitutional exercise of Congress’s taxing powers after the 2017 Congress dropped the penalty for noncompliance to zero.

But the appeals court left one major questioned unanswered: whether the rest of the law can survive without that provision. It then kicked the case back to the same federal district judge in Texas who had ruled the entire law had to be struck down and instructed him to take another look at what provisions, if any, could live on.

California and other states led mostly by Democrats jumped in to defend the law after the Justice Department refused, pushing the high court to intervene.

The Supreme Court is expected to hear arguments in the next term that begins in October, and they could be held before the November presidential election.

Texas and a group of Republican-led states argue the mandate to buy insurance can’t be severed from the rest of the ACA, and the law therefore must be treated as excised from the U.S. Code. The House called that argument implausible.

“In 2017, Congress made the deliberate choice to render the provision of no practical effect by eliminating any consequence for failing to maintain insurance, while at the same time leaving the rest of the law untouched—after deliberating about and ultimately rejecting repeal of the entire ACA,” the House said in the filing. “

The Texas-led group and the DOJ have a deadline of June 25 to file their opening briefs in the case.

‘Staying With Texas’

As she did on the ACA’s tenth anniversary in March, House Speaker Nancy Pelosi on Wednesday again urged President Donald Trump to abandon the litigation.

“How can this president watch as families are being devastated by this virus, losing their loved ones, and then say ‘I’m going to take away their health care?’” she asked while speaking with reporters on a call organized by Protect Our Care, a health-care advocacy organization.

“The administration has a responsibility to defend the law of land. The Affordable Care Act is the law of the land. They’re not supposed to tear it down,” Pelosi (D-Calif.) said.

Trump was asked Wednesday if the White House plans to modify its push to dismantle the law.

“We’re staying with Texas and the group,” Trump said. “Obamacare is a disaster, but we’ve made it barely acceptable.” His administration plans to replace it with something cheaper that also covers preexisting conditions but doesn’t include the individual mandate, he said.

ACA ‘Instrumental’ During Crisis

In its brief, the California-led coalition credited the ACA with getting people who lost their job-based coverage due to Covd-19 insured and providing them subsidies to help pay for it.

The law’s Prevention and Public Health Fund has also supported state and local efforts to track the spread of coronavirus, enhance laboratory capacity, and expand diagnostic testing, and its provision requiring insurers to cover 10 essential benefits has paid for diagnoses and treatment, the group asserted.

The ACA has been “instrumental in our Nation’s response to the COVID-19 pandemic,” the group said.

The case is California v. Texas, U.S., No. 19-840, 5/6/20

(Updated with additional reporting beginning in the 12th paragraph.)

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com