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Democrats press high court to make call on ACA. How it could play out at polls

Julie Rovner, Kaiser Health News on

Published in Health & Fitness

You're forgiven if in the holiday rush you missed the news last month that a federal appeals court in New Orleans once again put the future of the Affordable Care Act in doubt and ordered a lower court to review its fate. Or if you missed the news last week that a group of Democratic state attorneys general have asked the Supreme Court to hear the case -- in this term, which ends in June. That would mean a decision could come right in the middle of the 2020 presidential and congressional campaigns.

It is not at all clear that the high court will take the case at this point, although it did seek a response from Republican attorneys general, the plaintiffs in the case, by Friday. The court does not generally accept cases that come to it before lower-court rulings are complete.

However, Nicholas Bagley, a University of Michigan law professor, wrote that the four liberals on the court may opt to roll the dice because they "can probably count on Chief Justice John Roberts, who has twice turned back more substantial challenges to the law and is unlikely to embrace a lawsuit as weak as this one."

Still, while it takes only four votes for the court to hear a case, it takes five to hear it on an expedited basis. That would mean the liberal justices would have to entice Roberts or another conservative to hear it this term.

The stakes could not be higher. Republicans, who originally rode their spirited criticism of President Barack Obama's signature health law to take control of Congress, suffered serious election defeats in 2018. The Democrats campaigned on fears that people with chronic medical issues might not be able to get coverage or those who gained Medicaid eligibility could lose it if Republicans prevailed.

Republicans are unlikely to want another fight about preexisting conditions and other popular provisions of the health law just weeks before the next election. Recent polling shows that some of the major provisions of the law are highly popular, even among Republicans.

 

But there are pitfalls for Democrats. They risk the court overturning the law, or creating the impression that they are trying to gin up a campaign issue.

What happens next will affect both politics and policy in a major way.

Democrats seem confident they want the case heard now. "Every day that Republicans' anti-health care lawsuit is allowed to endure is a day that American families will be forced to live in uncertainty and fear," House Speaker Nancy Pelosi said in a statement last week. "Unless the Supreme Court acts, families will continue to face needless disruption in their coverage and premiums, states will be unable to plan for the future and protections for people with preexisting conditions will remain in peril."

And Republicans are content with the appeals court decision. "The individual mandate is the centerpiece of Obamacare, and I am glad the 5th Circuit recognized that it is unlawful," said Texas Attorney General Ken Paxton, who helped bring the original suit. He added, "Finally being rid of this law will be a victory for all Americans."

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