Published: Sat, June 09, 2018
Medical | By Marta Holmes

Justice Department says heart of health law unconstitutional


Attorney General Jeff Sessions speaks on Capitol Hill in Washington.

"If the Trump administration is successful in arguing against the constitutionality of protecting patients' access to care, it will have immediate and disastrous effect on our health care system and the American people", the lawmakers say.

Three attorneys for the government withdrew from the case just minutes before the Justice Department's filing in federal court in Fort Worth, Texas, which signaled an internal rift within the administration over its role in defending USA law, according to University of Michigan Law Professor Nicholas Bagley. The first, known as guaranteed issue, requires insurers to offer coverage to everyone regardless of their health background. It also says the provisions shielding people with medical conditions from being denied coverage or charged higher premiums also fall.

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The chances for that argument succeeding are viewed with deep skepticism by legal experts, in part because Congress itself indicated that the rest of ObamaCare could still stand without the mandate when it moved to repeal the tax penalty previous year.

Since Congress repealed the penalty for not having insurance in its tax reform package previous year, much of the rest of the insurance statute becomes unconstitutional in 2019 and must be "struck down", attorneys for the Justice Department said in a court filing Thursday. In the meantime, the existing law will likely remain.

In many ways, the lawsuit, filed in February, is a replay of the politically divided litigation that ended with the Supreme Court upholding the health care overhaul in 2012.

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A coalition of 20 US states sued the federal government in February, claiming the law was no longer constitutional after last year's repeal of the penalty that individuals had to pay for not having insurance.

Donald Verrilli Jr, Barack Obama's top supreme court lawyer who defended the law, called the decision "a sad moment".

"The question is, what does this do to insurance markets now?" said Jost.

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The Trump administration is trying out a new tactic to get rid of the Affordable Care Act (aka Obamacare): calling at least one provision of it unconstitutional. He said the department only refused to defend the pre-existing conditions provision as well as one forbidding insurers from charging people in the same community different rates based on gender, age, health status or other factors.

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