Federal judge Reed O'Connor in Forth Worth just ruled in a lawsuit against Obamacare--officially, the Affordable Care Act--that the entire law is unconstitutional and should be struck down. It's a surprising turn of events for a law that has survived multiple legal challenges, and his decision is sure to be appealed. Nevertheless, this may be the beginning of the end for the controversial law that has raised powerful emotions on both sides of the partisan divide, changed how health care is delivered and paid for in this nation, and led tens of millions of previously uninsured Americans to sign up for health insurance.

Here are answers to some of the questions this decision raises:

1. Can I still get insurance through Obamacare for 2019?

Yes. If you've signed up for insurance through HealthCare.gov or one of the state exchanges, you will still have that insurance for the coming year. If you want Obamacare insurance in 2019 and haven't signed up, you'd better hurry: The deadline is December 15.

2. Who brought the lawsuit, and why do they say Obamacare is unconstitutional?

The suit was brought by the attorneys general of 20 states, led by Texas, plus governors of Maine and Mississippi. Their reasoning as to why the law is unconstitutional centers on the its least popular provision, the individual mandate. It says that all Americans must have health insurance, and those who don't will pay a penalty at tax time. This provision was challenged in a Supreme Court case in 2012. At that time, the high court decided that Congress, through its right of taxation, could indeed impose a tax on people who didn't carry health insurance.

But then things changed, because as part of the recently passed tax reform bill, that tax penalty was reduced to zero. So the plaintiff states argued that Congress's power to tax Americans was no longer part of the equation and what remained--the mandate--violated the Constitution. They further argued that the mandate could not be separated from the rest of the law, and that therefore the entire law should be struck down. Judge O'Connor agreed with that reasoning.

3. Who defended Obamacare?

In 2012, legal challenges to the law were fought by the Justice Department, which makes sense since it was a law passed by the federal government. But that was under President Barack Obama. President Trump campaigned on a promise to repeal Obamacare. And so the Justice Department chose not to defend Obamacare, even its most popular provision, which forbids insurance companies from denying coverage or charging higher prices on the basis of pre-existing conditions. But although the DOJ did not defend Obamacare in federal court, 16 states and the District of Columbia did, led by California. 

4. What happens next?

The states that defended Obamacare say they will appeal the ruling. It's likely the case will make its way to the Supreme Court, a process that could take a long time. The high court, of course, has already ruled once to uphold the law. But the justices could still agree to hear this case, and they could rule very differently this time around, because the composition of the court itself is different. There are two new Trump appointees, Neil Gorsuch, who replaced Antonin Scalia, and Brett Kavanaugh, who replaced Anthony Kennedy.

5. If Obamacare is repealed, will anything change for people who aren't using it to buy insurance?

Most likely yes, because, as The Wall Street Journal put it, Obamacare "has now become deeply intertwined in the U.S. health system." There could be all sorts of changes, but probably the ones that people care most about are that insurance companies could once again charge on the basis of gender and could increase premiums for older Americans (and perhaps decrease them for younger ones). They would no longer be required to extend coverage to the children of their customers up to age 26. And they could once again refuse coverage, or charge more, on the basis of pre-existing conditions. The Kaiser Family Foundation estimates that 52 million Americans would be rejected for pre-existing conditions if the nation returned to pre-Obamacare rules. 

As the Texas lawsuit went to court, 10 Republican Senators introduced a bill that would prevent insurance companies from denying people insurance or changing the rates on the basis of pre-existing conditions. But that law does allow them to exclude coverage for those conditions, something that was commonly done before Obamacare. So, for instance, under the proposed law, if you had cancer and you wanted to purchase insurance, you could buy it, but it wouldn't cover your cancer. It would cover you if you tripped and sprained your ankle.

President Trump, who has always promised to replace Obamacare with something people would like better, tweeted in response to the decision, "Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!" Good advice--but Congressional Republicans have already tried and failed to replace Obamacare with "Trumpcare," and that was back when they had control of the House, which they won't after January 3. So what happens if the Supreme Court strikes down Obamacare? It's pretty much anybody's guess.

Published on: Dec 15, 2018
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