Washington – Just as the Trump administration notified a federal court it would challenge the constitutionality of the Affordable Care Act, Connecticut joined other states in stepping up their legal defense of Obamacare.

In a filing Monday with the 5th U.S. Circuit Court of Appeals, the Justice Department said it agreed with 15 Republican attorneys general that the elimination of the “individual mandate,” the requirement that most Americans have health insurance, invalidated the entire ACA.

That was a surprising shift in policy for the Trump administration, which had argued in a brief in June that the tax penalty for not buying insurance — repealed by Congress in a federal tax overhaul — was legally distinct from other provisions of the law, which could still stand.  The administration said there were only grounds to strike down the law’s consumer protections, including those for people with preexisting health conditions, but the rest of the health care law, including its expansion of Medicaid, were still constitutional..

“This is a cruel attack on Connecticut families and on the American people. It’s pure political cruelty. My colleagues and I — 21 of us — are standing as the firewall for people in Connecticut and the American people.”

Connecticut Attorney General William Tong

Now the administration says it agrees with a ruling by U.S. District Judge Reed O’Connor that the entire ACA is “invalid” because of the elimination of the individual mandate. That decision has been appealed to the 5th Circuit Court of Appeal.

“This is a cruel attack on Connecticut families and on the American people. It’s pure political cruelty,” said Connecticut Attorney General William Tong, who is fighting the legal challenge to the ACA at the court of appeals.

Connecticut, and 20 other Democratic attorneys general, led by California Attorney General Xavier Becerra, filed an opening brief on Monday in the 5th Circuit in defense of the health care law.

Connecticut Attorney General William Tong
Connecticut Attorney General William Tong Twitter

“My colleagues and I — 21 of us — are standing as the firewall for people in Connecticut and the American people,” Tong said.

The Democrats’ brief argues that the individual mandate can be “severed”’ from the rest of the ACA. The Democratic attorneys general also argue that the rival group of Republican attorneys general, led by the state of Texas, have no legal standing to bring the suit.

Timothy Jost, professor emeritus at Washington and Lee School of Law and an expert on the ACA, said that is a strong legal point.

“The question of standing in a federal court only is granted if the case is brought by someone who is injured,” Jost said. “No one is injured here. No one was hurt by the elimination of the individual mandate.”

The Democratic-controlled U.S. House of Representatives has also intervened to ask the ACA be upheld in its entirety.

And the nation’s health insurers have also filed a brief in support of the ACA. The insurers decried the Trump administration’s decision to join those seeking a legal end to the health care law.

“We said before that the district court’s decision was misguided and wrong,” said Matt Eyles, president of America’s Health Insurance Plans. “This harmful position puts coverage at risk for more than 100 million Americans that rely on it.”

Jost said the 5th Circuit Court of Appeals, which hears cases from Mississippi, Louisiana and Texas, “is possibly the most conservative in the country” and could agree the ACA is unconstitutional.

“On the other hand, the position that Texas and the administration is taking is so absurd that I think there’s a very good chance the lower court’s decision would be reversed,” Jost said.

The final arbiter of the fate of the Affordable Care Act may be the Supreme Court, which is more likely to hear an appeal if the 5th Circuit agrees with the lower court, Jost said.

Impact felt in Connecticut

An elimination of the ACA would have a huge impact in Connecticut, which enthusiastically implemented Obamacare.

“It would be catastrophic,” said Ted Doolittle, Connecticut’s health care advocate. “Right off the bat, the popular parts everyone wants to keep would be thrown out — having kids on the policy until 26, no annual limits, no lifetime limits — along with the parts people object to.”

Connecticut law prohibits insurers from denying coverage to residents with pre-existing conditions in most of the policies they sell here.

“It would be catastrophic. Right off the bat, the popular parts everyone wants to keep would be thrown out — having kids on the policy until 26, no annual limits, no lifetime limits — along with the parts people object to.”

Ted Doolittle
State Health Care Advocate

But that protection, as well as the state-mandated “essential health benefits” all insurers in the state must provide, is predicated on the existence of the ACA and would be vulnerable to repeal if the health care law no longer existed.

More than 267,000 low-income adults  — aged 19 and older without minor children – have coverage through the ACA’s expansion of Medicaid, known as HUSKY D in the state.

Tens of thousands of other Connecticut residents get help purchasing a policy with premium subsidies through the ACA’s health care exchange, AccessHealth CT.

That is all likely to disappear if the ACA does, dramatically increasing the numbers of uninsured people in the state.

Last year, Ben Barnes, the former head of Connecticut’s Office of Policy and Management, said the end of those two key provisions of the ACA — the federal tax credits that help those who qualify to purchase insurance and the federal payments to states for expansion of Medicaid –would result in the loss in of about 35,900 jobs across many industries in Connecticut.

Barnes also said the dismantling of those provisions would result in a loss of $12.5 billion in federal funds, $39.1 billion in business output, $23.3 billion in gross state production and $748 million in state and local taxes in the five-year period from 2019 to 2023.

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Ana has written about politics and policy in Washington, D.C.. for Gannett, Thompson Reuters and UPI. She was a special correspondent for the Miami Herald, and a regular contributor to The New York TImes, Advertising Age and several other publications. She has also worked in broadcast journalism, for CNN and several local NPR stations. She is a graduate of the University of Maryland School of Journalism.

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Jenna CarlessoHealth Reporter

Jenna is CT Mirror’s Health Reporter, focusing on health access, affordability, quality, equity and disparities, social determinants of health, health system planning, infrastructure, processes, information systems, and other health policy. Before joining CT Mirror Jenna was a reporter at The Hartford Courant for 10 years, where she consistently won statewide and regional awards. Jenna has a Master of Science degree in Interactive Media from Quinnipiac University and a Bachelor or Arts degree in Journalism from Grand Valley State University.

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6 Comments

  1. So here is the delusional denial of the CT GOP: What happens in DC isn’t our concern and doesn’t matter here.

    Meanwhile we are using CT judicial, legislative and executive resources to support the dignity and well-being of all citizens of CT because the CT GOP stands with the DJT/DC agenda.

  2. “Last year, Ben Barnes, the former head of Connecticut’s Office of Policy and Management, said…would result in the loss in of about 35,900 jobs across many industries in Connecticut…also said the dismantling of those provisions would result in a loss of $12.5 billion in federal funds, $39.1 billion in business output, $23.3 billion in gross state production and $748 million in state and local taxes in the five-year period from 2019 to 2023.”

    Empathy for the sck, or political desire for increased tax revenue? You decide…

  3. The entire problem with health care is that the wages of the middle class have not kept pace with the technological innovations that have greatly improved health care over the past decades. The solution is to extend Medicare to all Americans and their families for bills that exceed $75,000 annually. Then we could buy insurance to cover the first $75,000. It would be relatively inexpensive and we could require employees to buy this insurance. We could still have Medicaid to care for the poor.

    Obamacare was just a way for the insurance companies to get rich because it forces patients to buy a garbage product. The deductibles are huge. They torture the patients and doctors with endless forms to get the required drugs and radiological tests. they refuse to cover specialist and ER visits. The CEOs made millions and the stock prices of health care stocks quadtripled after Obamacare was passed. Yet liberals and Democrats still insist that this legislation helped the middle class. It was nothing but a way to make the insurance and drug companies rich as they are huge donors to the Democratic Party – a huge scam.

  4. This article leaves out a significant element of the legal challenge.
    The four dissenters from the original Obamacare mandate decision by the Supreme Court stated that overturning the mandate would end Obamacare:
    ”Justice Anthony M. Kennedy, who had been thought to be the administration’s best hope to provide a fifth vote to uphold the law, joined three more conservative members in an unusual jointly written dissent that said the court should have struck down the entire law. The majority’s approach, he said from the bench, “amounts to a vast judicial overreaching.
    https://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html”
    It’s possible that view will be decisive this time.

  5. Big Trumpy person me and my wife know just was laid off recently. Constantly yelping Obamacare is socialist. Now she needs it. How ironic.

  6. Typical situation today for a non.union employee. Husband and wife with 2 young kids. They are covered at work . Employer pays for their $22,000 ish a year health insurance policy. And husband or wife employee pays $10,000 back via payroll deduction. Then this policy requires couple to pay first $6,000 ish in deductible BEFORE policy covers anything. (Except annual physicals.and any age appropriate screenings). Boom! Couple is out $10,000 and potentially up to $16,000. This is capitalism on the backs of everyday Americans. Breaking their backs ! This is Wall Street owning American healthcare.This is the Republican Party in Washington. And Donald Trump. And the gullible scream Socialism and Obamacare!!??!!?? My God. Help us down here.

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