You probably remember how hard Republicans in Congress tried to repeal the ACA in 2017 (not to mention the over 60 previous votes held to repeal the ACA before the current Administration took office). Thankfully, they failed. But they were able to use their tax bill to eliminate an important part of the ACA, the individual mandate penalty.

Since they couldn’t repeal the law, Republicans returned to another favored strategy – declaring that the ACA is unlawful and suing the federal government. This lawsuit was filed in 2018 by a coalition of Republican Attorneys General who are arguing that Congress intended the entire law to be thrown out when it removed the individual mandate. In December, they found a judge in Texas who agreed. The next phase of the case starts today in an appeals court in New Orleans.

The ACA has survived more serious legal challenges than this one. But no one expected the original judge to agree with the plaintiffs in this case. The only thing that’s certain is that stopping these attacks on the ACA once and for all means electing representatives who believe that health care is a human right, in every election, at every level of government.

It seems clear that Congress did NOT intend to invalidate the entire law – they certainly tried to repeal the entire law, but they failed every time. All they were able to do was get rid of the mandate penalty, and that’s all the members who voted for the tax bill intended their bill to do. But this coalition is trying to convince the judiciary that removing the mandate introduces a “constitutional defect” into the entire ACA and thus the law can no longer stand. And instead of a Justice Department that works to implement laws, as the executive branch is meant to do, we have a Justice Department that wants to get rid of the ACA whatever the costs. There’s a lot more information about the legal aspects of the case here.

What would it mean to lose the ACA? At this point the law is so ingrained into our health care system that it’s hard to imagine. Every aspect of health care would be affected – hospitals, individual providers, public insurance programs, employer coverage, private plans sold to individuals, Medicare. In New York, we’ve elected leaders who were willing to fight for the ACA, which means we are somewhat protected. Attorney General Letitia James is one of the Democrats fighting to defend the law (call her and say thank you!). Our state law protects people with pre-existing conditions, guarantees that all health plans provide the essential health benefits, and prohibits insurers from imposing annual or lifetime coverage caps. But we get billions from the federal government through the ACA to support our Medicaid and Essential Plan programs and to help individuals subsidize premiums in the individual market. It would be hard, if not impossible, to replace that money using state funds which would lead to some tough decisions.