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Friday, November 11, 2011

A Big Week in the Courts for Health Care, Especially for Medicaid

Ron Pollack

Executive Director

This week is shaping up to be an important one in the legal battle over the Affordable Care Act. Tuesday's decision from the DC Circuit Court of Appeals is a big win for supporters of the law. It's the third appellate court to reject challenges to the law. In June, the Sixth Circuit upheld the law. In September, the Fourth Circuit tossed out another case, holding that it was premature to challenge the individual responsibility provision because it functions like a tax and taxes cannot be challenged before they are imposed. So as more courts look at Affordable Care Act, the more the Eleventh Circuit's August ruling striking down the individual responsibility provision looks like an outlier.

Second, as noted by others, the DC opinion is written by Judge Laurence Silberman, a leading conservative jurist appointed to the bench by Ronald Reagan. Judge Silberman is a conservative's conservative -- member of the Federalist Society, on the short list for the Supreme Court during the Reagan and George H.W. Bush administrations, and awarded the Presidential Medal of Freedom by President George W. Bush. But Judge Silberman's ruling is unambiguous. It methodically dismantles every argument made by opponents of the law, and concludes that if one follows the last century of Supreme Court precedent -- which conservatives claim courts should do -- the individual responsibility provision is unquestionably constitutional. Like the Sixth Circuit decision from June written by Judge Sutton, Tuesday's opinion lays out a clear roadmap for conservative Justices on the Supreme Court to follow in upholding the law. Even the one judge who disagreed with the majority in the DC case, Judge Kavanaugh (a conservative George W. Bush appointee), did not vote to strike down the law. Instead, he would have dismissed the case as premature, along the lines of the Fourth Circuit case -- meaning all three judges thought this case should be dismissed.

Tuesday's decision is particularly timely because on Thursday the Supreme Court is expected to confer and decide if and when to hear the several Affordable Care Act cases coming out of the Courts of Appeal from around the country. It seems certain they will agree to review the Eleventh Circuit case that struck down the individual responsibility provision. That case is now in conflict with three other cases (the Sixth, Fourth, and DC Circuit cases), and the federal government has requested a review. The Supreme Court will likely also consider what sections of the Affordable Care Act are at risk if the individual responsibility provision were to fail, as well as the question of whether all the cases are in fact prematurely brought. These are all vital questions with huge implications for the health and well-being of our country.

There is also another issue before the Court this week that may get less attention, but is of particular importance to those of us who care about making life better for lower-income Americans. As I noted when the Eleventh Circuit issued its opinion in August a central component of the coverage expansion in the Affordable Care Act is the extension of Medicaid coverage to all low-income Americans. Today, many low-income parents and most low-income adults without children cannot get Medicaid. Starting in 2014, all these people will be eligible for Medicaid coverage that could potentially save their lives.

The 26 states in the Eleventh Circuit case have asked that this expansion of Medicaid be declared unconstitutional because it is "coercive" of the states -- even though between 90 to 100 percent of the costs of that expansion are paid for by the federal government. This argument has been rejected at every level in this case, and previous expansions of Medicaid have always been upheld. But the states have asked the Supreme Court to review this issue yet again. We'll know soon what the Court decides. If they decide not to hear the Medicaid issue, it means that portion of the Eleventh Circuit decision stands, and the Medicaid expansion can roll out as planned in 2014. Millions of the most vulnerable Americans will finally have access to affordable health insurance. After a decade where poverty has increased substantially, this is the kind of action Americans need. Let's hope the Supreme Court doesn't get in the way.

This blog was originally featured in Huffington Post.