Published: Wed, July 10, 2019
Medicine | By Brett Sutton

As Texas Seeks To Overturn Obamacare, Attention Focuses On Potential Swing Judge

As Texas Seeks To Overturn Obamacare, Attention Focuses On Potential Swing Judge

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the USA 5th Circuit Court of Appeals to strike down the sweeping health law known as "Obamacare", a legal means to a political end that has eluded conservatives for the better part of a decade. Judge Jennifer Elrod, who was appointed to the 5th Circuit Court of Appeals by Republican President George W. Bush, asked attorneys for the Democratic officials defending the law during a hearing in New Orleans.

Still, Engelhardt suggested Congress could take steps to protect less controversial parts of the health care law. A host of ACA provisions would be eliminated, including: "protections for people with pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents' insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare's drug benefit, and a series of tax increases to fund the new benefits". "Republicans should be the party of healthcare and we should come together on a workable proposal to replace Obamacare".

It was less clear after the arguments whether the judges also would invalidate the entire health care law, as the Trump administration favors.

Kyle Hawkins, solicitor general for the Texas attorney general who initiated the lawsuit in February 2018, countered: "I am not in position to psychoanalyze Congress. what Congress intended".

People wait in line to enter the 5th Circuit Court of Appeals to sit in overflow rooms to hear arguments in New Orleans, Tuesday, July 9, 2019.

In rebuttal, a California-led coalition of 20 intervening states and the District of Columbia, recently joined by the U.S. House of Representatives, told the appellate panel that U.S. District Judge Reed O'Connor's ruling was flawed. King was nominated to the appeals court by President Jimmy Carter in 1979.

The court made no decision on Tuesday.

The Supreme Court's conservative majority argued that Congress could not constitutionally order people to buy insurance. The law remains in place during appeals.

If the lower court ruling is ultimately upheld, the case, Texas v.


Pro-ACA groups warned of the peril to consumers if the law were struck down.

An estimated 52 million Americans have preexisting health conditions that insurers could have denied coverage to under pre-ACA rules in most states, the foundation said.

For all the drama, much of the presentations by attorneys and judges' questions turned on technical points, focusing largely on the matter of "severability" - whether the elements of the law can exist independent of one another - and whether the various parties to the case have legal standing to take part.

Obamacare, the signature domestic achievement of Trump's Democratic predecessor has been a political flashpoint since its passage. Engelhardt questioned whether the judiciary should be "taxidermist for every legislative big-game accomplishment that Congress achieves".

Henneke rejected arguments that Congress never meant to repeal the ACA in its entirety when it zeroed out the individual mandate tax penalty in 2017.

Numerous points and counterpoints laid out at the hearing have been part of the case since it began. Upholding the lower court's ruling, the scholars add, "would upend all of those settled expectations and throw healthcare markets, and 1/5 of the economy, into chaos".

"Then there are no legal consequences for going without health care coverage", Siegel said.

Asked by Elrod to elaborate, Flentje did not. Another 800,000 Pennsylvanians enrolled in Medicaid expansion also could lose coverage.

A federal appeals court will consider whether to uphold a Texas judge's ruling declaring the Obamacare healthcare law unconstitutional, a position now backed by the Trump administration.

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