After Texas Ruling, What’s Next for Obamacare?

The Trump administration and Republican-led Congress have unsuccessfully tried to bring an end to the Affordable Care Act, aka Obamacare, over the last two years. But last week, a federal judge in Texas single-handedly dealt the sweeping health care law a significant blow.

U.S. District Judge Reed O’Connor ruled Friday that Obamacare is unconstitutional. The decision did not bring an immediate end to the law, and appeals are underway as the fate of Obamacare may end up at the U.S. Supreme Court – for a second time.

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“That’s a repeal and replace, handled a little bit differently, but it was a big, big victory by a highly respected judge,” said President Donald Trump.

“On the assumption that the Supreme Court upholds, we will get great, great health care for our people,” he said. “We’ll have to sit down with the Democrats to do it, but I’m sure they want to do it also."

The first challenge to Obamacare that went before the Supreme Court was in 2012. Plaintiffs argued then the individual mandate allowed Congress, to force everyone to buy insurance.

“In a bit of a surprise move, [Chief Justice John G. Roberts Jr.] wrote the majority opinion in that case, and he found – along with the majority of the court – that the individual mandate was constitutional, and he based that decision on the taxing authority of Congress,” said DePaul University Law Professor Wendy Netter Epstein.

But in 2017, Congress repealed the individual mandate by zeroing out the penalty.

“So the mandate still exists in the law, but what the law now says is even if you never sign up for health insurance, you don’t get a policy, you don’t have to pay the government anything,” said Epstein, who is the faculty director at DePaul’s Mary and Michael Jaharis Health Law Institute.

That brings the Obamacare challenge to its most recent ruling, after 20 red-state governors and attorneys general filed a lawsuit arguing that “now that there is no tax penalty associated with the individual mandate and because the mandate was previously determined to be constitutional because it was a tax, that now there’s no basis on which to uphold the mandate and it is unconstitutional,” Epstein said.

“And that’s the argument that Judge O’Connor accepted,” she said.

The Obamacare ruling is likely to be challenged in the U.S. Fifth District Appellate Court, but Anthony LoSasso, a professor in Health Policy and Administration at the University of Illinois at Chicago’s School of Public Health, thinks it’s unlikely Obamacare will be declared unconstitutional.

“Right now, there’s nothing that has happened,” he said. “So it is business as usual and we can only speculate about what the appeals court might do and what the response to that might be.”

Joining us in discussion are Epstein, LoSasso and Mark Shields, a board member of the Institute of Medicine of Chicago and former senior medical director for Advocate Physician Partners.

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