Abbott nears resolution to legal fight against Affordable Care Act

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With the largest share of medically uninsured residents of any state, Texas has led the fight against the federal Affordable Care Act for the past decade.

Now a resolution is in sight for the Lone Star State leadership's quest to end the federal program that provided millions of Americans access to health insurance.

In its March 2 decision to hear the case, the Supreme Court did not specify when a decision would come, but typically arguments are heard in the fall. A ruling could be expected in the spring or summer of 2021 — well after November's election.

In 2013, Texas Gov. Greg Abbott, then the state attorney general, boasted that he had sued the federal government 25 times to stop the 2010 ACA from taking effect.

"I go into the office, I sue the federal government and I go home," Abbott told state Republicans in 2013.

Now the governor is facing the COVID-19 pandemic after setting a policy direction that gave Texas, the second most populous state, the highest rate of medically uninsured residents of any state, with nearly 18% of people lacking health coverage, per the U.S. Census Bureau.

Abbott declared a state of disaster Friday due to the health crisis.

"From the very beginning, our number one objective has been to implement preventative strategies that build on our state’s existing public health capabilities so that no matter how this situation unfolds, Texas will be ready," Abbott said Friday in an official declaration of disaster.

The pandemic puts Abbott, President Trump and their political allies in conflict with other states as the Supreme Court considers Texas’s successful effort in the lower courts to rule the Affordable Care Act unconstitutional.

“We know that people who lack insurance are much less likely to go to the doctor, even when they are sick,” said Joe Hanel, spokesman for the Colorado Health Institute, in a statement. “The 2019 Colorado Health Access Survey shows that 52% of uninsured Coloradans skipped care they needed because of the cost, compared to 16% of people with job-based insurance and 13% of people on Medicare.”

Colorado’s Democratic-controlled General Assembly is considering legislation that would require a public option from existing health insurance plans.

As Texas leads the fight against the ACA — known informally as Obamacare — other states are using the law combat the disease that has shut down large swathes of the nation’s and the world’s economy.

In a letter to Trump, Michigan Gov. Gretchen Whitmer sought a special period for uninsured people to obtain health care coverage through the ACA to increase treatment and testing for the virus.

“During this crisis, we must do everything we can to ensure access to quality, affordable health care,” Whitmer said in a statement. “That’s why we’re calling on the president to allow for a special enrollment period, and why we’re taking action today in Michigan to expand opportunities for safe, quality care through telemedicine."

A group of Democratic U.S. senators, led by Sen. Bob Menendez of New Jersey, has joined the appeal, saying that they are “deeply concerned that individuals and families will be forced to choose between getting tested and seeking care for COVID-19 to protect themselves, their families, and communities from further spread and being left with thousands of dollars in bills that they are unable to pay.”

The fight over the ACA comes in an election year when Democrats have already made healthcare the major issue in their campaign to re-take the Senate and the White House. While Democratic frontrunner Joe Biden has touted his work in the Obama administration in winning passage of the ACA in 2010, his opponent Sen. Bernie Sanders has called for a more comprehensive health plan known as Medicare for All.

“This case is a stark life-and-death reminder how much is at stake this fall and what’s on the ballot right now,” Biden said in a written statement on the COVID-19 outbreak. “Democrats must nominate the candidate whom they know can beat Trump and bring along the Senate, to ensure we can protect our health care for generations to come.”

Obama himself stepped into the fray recently with a 90-second video defending the ACA in advance of the Supreme Court’s consideration of the Texas case.

“It’s been 10 years since we passed the Affordable Care Act,” the former president said. “With your help, it's the closest we’ve ever come to universal coverage in America. There are people alive today because of what you did.”

After Democrats asked the Supreme Court to uphold the ACA and overrule a decision from the 5th Circuit Court of Appeals from December, Texas and Republican states urged the court to delay its consideration of the case. In 2012, the court upheld the constitutionality of the so-called “individual mandate” that required citizens to have medical insurance or pay a penalty on their federal taxes.

In December, the Republican-appointed 5th Circuit Court of Appeals ruled in a 2-1 decision that the law’s mandate to have insurance is unconstitutional but did not elaborate on the implications of the decision. The original ruling overturning the ACA came in Texas court deemed favorable to Republican positions.

Texas Republican Attorney General Ken Paxton, who took over the fight against the ACA when Abbott was elected governor in 2014 said the delay was needed so that the lower courts could first clarify some issues.

“The individual mandate is the centerpiece of Obamacare, and I am glad the Fifth Circuit recognized that it is unlawful,” Paxton said in prepared statement. “I look forward to demonstrating in district court that the rest of the law cannot stand without this central provision.”

Texas hospitals and nursing homes are on the front lines of the COVID-19 battle and would be deeply affected by loss of insurance provided by the ACA, health advocates say. The hospitals and nursing homes represent billions of dollars of outstanding bond debt.

Moreover, the pandemic’s economic impact coincides with a deep drop in oil prices that threatens to undermine Texas’s heretofore healthy economy.

“With the pandemic likely to trigger an economic downturn, states will require federal fiscal relief to weather the storm,” Jennifer Sullivan, senior policy analyst at the Center on Budget and Policy Priorities, wrote in a March 12 blog post. “Rising unemployment and falling economic activity shrink state tax revenues even as demand for things like Medicaid and unemployment insurance rises.”

The combined impact of the pandemic and the loss of the ACA would put county health systems and their taxpayers in an even tighter squeeze.

In a preliminary official statement for $30 million of certificates of obligation, the Harris County Hospital District cited both the loss of insured patients and the COVID-19 outbreak as undefined risks for bondholders.

“An outbreak may cause a material disruption in the district’s operations due to the effects such event would cause on the labor market and related medical supply chains,” the POS noted. “Financial markets in the United States and globally may experience significant volatility or declines in connection with an outbreak, which may have a material impact on the market price of the certificates.

“The district cannot predict the impact COVID-19 may have on the district’s financial and operating condition or an investment in the certificates,” the statement added.

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