WASHINGTON -- Three provisions of the Affordable Care Act are unconstitutional and therefore not defensible in court, the Justice Department said.
In a in federal district court in Texas, the department argues that the individual mandate, as well as the community rating and guaranteed issue provisions of the law, are all unconstitutional and need not be defended in a case currently pending before the court.
"After careful consideration, and with the approval of the President of the United States, I have determined that, in Texas v. United States, the department will not defend the constitutionality of [the individual mandate], and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision," U.S. Attorney General Jeff Sessions wrote in a (R-Wis.) explaining his decision.
The case in question was filed in February by the state of Texas along with 19 other states, all led by Republican governors. It argues that because the tax reform bill passed by Congress gets rid of the ACA's "individual mandate" penalty for not having health insurance, the requirement for individuals to have health insurance is void, and because of that, the rest of the law -- which they say hinges on the mandate -- should be invalidated.
Sessions, in his letter to Ryan, said that the parts of the law restricting the variance in the premiums that could be charged and requiring insurers to cover everyone did hinge on the mandate, because without the mandate, "individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else." However, Sessions added, "Outside of these two provisions of the ACA, the department will continue to argue that [the individual mandate] is severable from the remaining provisions of the ACA" and therefore the rest of the law is valid.
What will happen because of this filing? "Nothing yet," wrote Tim Jost, emeritus professor of law at Washington & Lee University, in Lexington Va., in a for the Commonwealth Fund. However, if the judge buys the government's argument and his ruling is upheld on appeal, "52 million Americans with preexisting conditions could face denial of coverage or higher premiums. The administration's argument would also allow insurers to charge women, older people, and people in certain occupations higher premiums."
The reason so many people could be affected by this decision is because it would apply not just to people with individual insurance policies, "but also [to] people with preexisting conditions who have employer-sponsored coverage. If these people lost or left their jobs, they may not be able to get individual market coverage."
Medical groups were generally unhappy with the department's decision. "The decision by the Department of Justice to abandon critical patient protections is devastating for the millions of Americans who suffer from serious illnesses or have preexisting conditions and rely on those protections under current law to obtain life-saving healthcare," read a from the American Cancer Society Cancer Action Network, the American Diabetes Association, the American Heart Association, the American Lung Association and the National Multiple Sclerosis Society.
"Should this case be successful, people with cancer, heart disease, diabetes and any serious or chronic condition are likely to be denied coverage due to their pre-existing conditions or charged such high premiums because of their health status that they will be unable to afford any coverage that may be offered ... Without access to comprehensive coverage patients will be forced to delay, skip or forego care. This was often the case before the law took effect and would likely be the same should these essential protections be eliminated."
"On behalf of the millions of Americans we represent, we urge the administration to reconsider its position," the statement concluded. "Striking down these provisions would be catastrophic and have dire consequences for many patients with serious illnesses."