By Ethan Rome - Executive Director, Health Care for America Now
The Fourth Circuit U.S. Court of Appeals in Richmond, Va., will hear arguments Tuesday on contradictory rulings by two Virginia federal judges on attempts to invalidate the new health care law's requirement that everyone who can afford private insurance must buy it.
The encouraging news for those of us who support the law, the Affordable Care Act (ACA), is that the results so far are good: of the 31 lawsuits challenging the ACA in federal courts, only two judges have ruled against part or all of the law. Most of the other cases have been dismissed or are still wending their way through the lower courts. Of the five judges who have ruled on the merits, three have upheld the law.
In one of the Virginia cases, U.S. District Judge Norman Moon ruled that the individual responsibility provision, also known as the individual mandate, is a proper exercise of congressional authority under the Commerce Clause of the Constitution.
Judge Moon is right: Congress clearly has the authority to regulate the health insurance market, including protecting consumers from insurance industry abuses and reducing costs for families, seniors and businesses. The best way to protect consumers and control costs is to make sure everyone has affordable health insurance, and that's what the ACA does.
As all the legal challenges wind through the courts, there have been several significant developments that provide important context for the litigation:
• Most states are proceeding at a good pace with implementation - including many of the 26 listed as plaintiffs in the Florida legal challenge now on appeal in the 11th Circuit. Virginia itself passed a law, signed by its Republican governor, declaring its intent to create a state exchange.
• The ACA is already making a huge difference in the lives of millions of Americans. For example, 600,000 young adults now have insurance thanks to the ACA requirement that they be allowed to enroll in their parents' workplace health plans. People now have zero co-pays for preventive services, children can no longer be rejected by insurers because of pre-existing conditions, and insurers must end lifetime limits on care. Seniors in the Medicare "donut hole" have discounts on prescription drugs, and 4 million of them received $250 checks last year. Small businesses are receiving job-creating tax credits for providing workplace coverage, and now more small businesses are offering coverage despite the slow economy.
• Contrary to their "repeal and replace" promise on the campaign trail, Republicans have failed to offer a replacement health care proposal of any kind. Instead they've obsessively worked to repeal and defund the ACA, a project that appears to have stalled out. Just last week GOP leaders threw up their hands and acknowledged the futility of their efforts.
• The Republicans spearheading the political and legal attacks on the law have demonstrated mind-blowing hypocrisy on the individual responsibility provision. While they've excoriated the mandate - and argued again and again that it violates the constitutional rights of every American - they've embraced a mandate in their Medicare privatization scheme, which the Republicans in the House voted for last month as part of their 2012 budget. The Republican plan ends Medicare as we know it and would devastate America's seniors and families. Ironically, it also requires that seniors buy private insurance in a way that's nearly identical to the insurance requirement in the ACA (although that's where the similarity to the ACA begins and ends).
The ACA lawsuits are part of a serious attack on the people who are benefiting from the law - millions of seniors, children, young people and families. The politicians who want to overturn the law can yammer on about the Constitution, but what they can't do is explain how taking away important protections and benefits is good for actual people.
We are confident the law will ultimately be upheld. The U.S. Supreme Court will have the final say, and it has corrected lower-court mistakes when the nation has enacted other historic laws like Social Security, the minimum wage law and the Voting Rights Act.
We also believe the American people will not allow the courts or the Congress to return us to the time when insurance companies could exclude people because of pre-existing conditions, drop people for getting sick, jack up rates when they please or let benefit caps force people with serious diseases into bankruptcy.
The two cases being heard Tuesday, just like the Florida challenge, are driven by partisan politics. The Republicans' obsessive efforts to repeal and defund the ACA reveal that this litigation is really about the Republican Party protecting health insurer profits at the expense of working and middle-class families - and about giving our health care back to the insurance companies.