Herring joins coalition seeking review of ACA decision

Attorney General Mark R. Herring recently joined a coalition of 21 attorneys general in filing a petition to the U.S. Supreme Court seeking review of the Fifth Circuit’s recent decision in Texas v. U.S.

The decision held the individual mandate of the Affordable Care Act (ACA) unconstitutional and called into question whether the remaining provisions of the ACA could still stand, including those that protect and provide coverage to Americans with pre-existing conditions. Because this decision causes uncertainty that may harm the health of millions of Americans, as well as doctors, clinics, patients, and the healthcare market, Attorney General Herring and his colleagues are petitioning the Supreme Court to take up the case and resolve it before the end of the Court’s current term in June.

“This was a politically motivated lawsuit from the beginning that has forced Americans to live in the constant fear that President Trump and his allies will rip away their healthcare, drive up healthcare costs for everyone, and take away all protections for preexisting conditions,” said Herring. “Millions of Virginians rely on the Affordable Care Act for quality, affordable healthcare and I will not stop fighting to protect their healthcare from these reckless, dangerous attacks.”

To protect Virginians’ healthcare, Herring and his colleagues intervened to defend the Affordable Care Act in this lawsuit after Pres. Trump switched sides and joined with Republican state attorneys general in trying to strike down the law. When a district court judge in Texas issued a decision in December 2018 finding the ACA to be unconstitutional, Herring and his colleagues immediately appealed to the U.S. Court of Appeals for the Fifth Circuit, which has now sent the case back to district court for further proceedings.

If the Trump Administration and its allies are successful in eliminating the ACA with this lawsuit:

642,000 Virginians could lose their health coverage, leading to a 96% increase in the uninsured rate in the Commonwealth;

The 3,441,400 Virginians who have pre-existing conditions would lose their protections and insurance companies would be able to deny or drop coverage and charge more for those pre-existing conditions;

289,081 Virginians in the marketplace would have to pay more for their coverage;

109,517 Virginia seniors could have to pay more for their prescription drugs;

Insurance companies would be allowed to discriminate against women by charging them higher premiums;

$1.15 billion in tax credits that helped 335,000 Virginians afford insurance in 2017 would be ended;

Funding from our nation’s public health system would be stripped, including work to combat the opioid epidemic;

Billions in federal aid for health care would be stripped, including $458 million in FY 2019 and $1.9 billion in FY 2020.

In briefs and at oral argument, Herring and his colleagues highlighted the consequences of striking down the Affordable Care Act. Such a ruling would affect nearly every American, including: 133 million Americans, including 17 million kids, with preexisting health conditions

Young adults under 26 years of age, who are covered under a parent’s health plan

More than 12 million Americans who received coverage through Medicaid expansion

12 million seniors who receive a Medicare benefit to afford prescription drugs

Working families who rely on tax credits and employer-sponsored plans to afford insurance

After failing to repeal the ACA in Congress, Republican attorneys general and the Trump Administration are pushing this case based on a novel theory that the Republican tax bill passed in 2017 somehow rendered the entire ACA unconstitutional.

On Dec. 14, 2018, Judge Reed O’Connor of the Northern District of Texas issued his decision agreeing with the plaintiffs. In response, Herring and his colleagues filed a motion to stay the effect of that decision and to expedite resolution of this case. The District Court granted that motion on December 30, 2018. On January 3, 2019, the coalition continued their legal defense in the ACA and formally filed a notice of appeal, challenging the District Court’s Dec. 14 opinion in the Fifth Circuit.

In March, 2019, Herring and the coalition of state attorneys general filed their opening brief arguing that the plaintiffs do not have standing to challenge the minimum coverage provision, because the individual plaintiffs are not injured by a provision that now offers a lawful choice between buying insurance and paying a zero-dollar tax. The attorneys general further argue that the state plaintiffs also lack standing, because there is no evidence that the amended provision will require them to spend more money. Lastly, the District Court wrongly concluded that the minimum coverage provision was unconstitutional, and even if it were, there would be no legal basis for also declaring the rest of the ACA invalid—including its provisions expanding Medicaid, reforming Medicare, and providing protections to individuals with preexisting health conditions.

In addition to Herring, Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Minnesota (by and through its Department of Commerce), Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, as well as the Governor of Kentucky also are participating.


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