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Frosh urges Supreme Court to save Obamacare

Maryland Attorney General Brian E. Frosh (File photo)

Maryland Attorney General Brian E. Frosh (File photo)

With the nation facing a severe health crisis, the U.S. Supreme Court should not scrap the entire Affordable Care Act if the justices deem unconstitutional the federal law’s provision mandating that individuals buy health insurance, Maryland Attorney General Brian E. Frosh stated in papers filed with the high court last week.

The ACA’s controversial individual mandate provision is distinct from the law’s sections prohibiting insurance companies from denying coverage to people with pre-existing medical conditions, providing expanded federal health coverage for low-income Americans and extending tax credits for health insurance coverage, Frosh wrote as the justices prepare to hear arguments again this fall on the fate of the statute popularly known as Obamacare.

“Even before the arrival of the nation’s worst health crisis in over a century, preservation of the ACA’s various invaluable forms of support, incentives, and safeguards had become crucial … for every state in the union,” Frosh wrote. “Now as the states and our residents face the COVID-19 threat, losing the ACA has become unthinkable.”

Joining Frosh’s amici curiae, or friends-of-the-court, brief to the justices were the attorneys general of Maine, New Hampshire, New Mexico, Pennsylvania and Wisconsin.

Frosh and four of the other five attorneys general on the brief are Democrats. New Hampshire Attorney General Gordon MacDonald is a Republican.

At the federal level, support for the ACA has always fallen along party lines.

Democratic lawmakers have wholeheartedly backed the measure spearheaded to enactment in 2010 by then-President Barack Obama, their standard bearer. GOP lawmakers have been as adamant in their opposition and quickly challenged the law’s constitutionality in court, particularly its mandate that individuals buy health insurance.

The first time the justices considered the ACA, in 2012, they upheld the individual mandate because people who declined health insurance were assessed a penalty on their taxes, a sanction the high court found valid under Congress’ constitutional taxing authority.

In 2017, Congress – with Republicans in charge of both the Senate and House — reduced the tax penalty to zero, thus reviving the issue of the individual mandate’s constitutionality and whether the law is so inextricably linked to the mandate that the entire statute must fall if the provision is struck down.

President Donald Trump, a Republican who succeeded Obama earlier that year, signed the change into law.

GOP lawmakers again challenged the individual mandate’s constitutionality, citing the removal of the tax penalty that had saved the provision – and perhaps the entire law — in 2012.

In December, the 5th U.S. Circuit Court of Appeals ruled the mandate unconstitutional but directed a U.S. District Court in northern Texas to determine if other provisions of the ACA could survive.

The law’s supporters appealed to the Supreme Court, saying the individual mandate remains constitutional but even if it does not, the ACA’s other provisions should survive because they are distinct and were left undisturbed by Congress in 2017.

The high court in March agreed to hear the case. A decision is expected by June 2021.

Frosh, in his filing, stated briefly and that he and the other states believe the individual mandate is still constitutional. However, Frosh focused primarily on the argument that the rest of ACA remains even if the mandate is struck down.

“This court can be confident that Congress did not intend for an alteration of one subsection to spell the demise of the entire ACA, because Congress understood that the ACA’s many other provisions were indispensable to the maintenance of public health in this country,” Frosh wrote, citing a decline in the number of people lacking health insurance since the law was enacted.

“The ACA has achieved this through means that include expanding and improving Medicaid, instituting robust consumer protections to prohibit insurers from mistreating the sick and vulnerable, and offering families and childless adults financial assistance to buy insurance that would otherwise be unaffordable,” Frosh added. “Given the challenges we face, the complexity of the healthcare markets, and the fragility of our state fiscal conditions, invalidating these provisions would be catastrophic for the states and our citizens.”

Frosh was joined on the brief by Maryland Solicitor General Steven M. Sullivan, the state’s counsel of record before the Supreme Court.

The case is California et al. v. Texas et al., No. 19-840.


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