NEW ORLEANS – A panel of federal judges in New Orleans sharply questioned attorneys defending the Affordable Care Act on Tuesday, increasing the chances that the 5th U.S. Circuit Court of Appeals may throw out at least part of the 2010 law, often called Obamacare.
Two of the three judges on the appeals court panel – both appointed by Republican presidents – repeatedly pressed California's deputy solicitor general, who is defending the law, to explain why it should remain on the books after Congress in 2017 scrapped a penalty against people who didn't have health insurance. That provision was once deemed essential to the program.
The judges seemed disinclined to decide what parts should be saved or struck down, as California and other defenders of the law have urged.
"Congress can fix this," said Judge Kurt Engelhardt, an appointee of President Donald Trump. Engelhardt suggested that if the health care law needs to be revised, lawmakers on Capitol Hill should do it, not the courts.
Engelhardt and Judge Jennifer Walker Elrod, who was appointed by President George W. Bush, could form a majority on the three-judge panel considering the fate of the sweeping challenge to the health care law brought by Texas and 17 other mostly Republican states. The third judge on the panel, Carolyn Dineen King, was appointed by President Jimmy Carter. She did not speak at the hearing Tuesday.
The states are suing to scrap the entire health care law, including its protections for people with preexisting conditions. Also at risk are billions of dollars in federal assistance that have helped millions of Americans get health insurance through Medicaid and state insurance markets.
If successful, the Texas lawsuit would strip coverage from as many as 20 million people and eliminate scores of other health care protections, including prescription drug assistance for seniors who rely on the Medicare Part D program.
Predicting how a court will rule based on a hearing is difficult, and no matter the result at the 5th U.S. Circuit Court of Appeals, the losing party is almost certain to appeal to the Supreme Court.
A victory for plaintiffs assures that health care will once again be front and center on the campaign trail as Trump seeks reelection next year.
The hearing at the 5th Circuit – which pits blue states defending the law against red states and the Trump administration seeking its repeal – has also raised the possibility that the health care law might survive only in parts of the country.
Such an outcome would eliminate insurance protections for tens of millions of people and mark one of the most dramatic turns in the nearly decadelong legal fight over the law.
It would also widen the divide in the U.S. between states that have embraced the law and its extensive series of insurance protections and those that have been fighting it since President Barack Obama signed the legislation in 2010.