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  Health Care - Legal News


To hear Democrats tell it, a Supreme Court with President Donald Trump’s nominee Amy Coney Barrett could quickly get rid of the law that gives more than 20 million Americans health insurance coverage. But that’s not the inevitable outcome of a challenge the court will hear Nov. 10, just one week after the election.

Yes, the Trump administration is asking the high court to throw out the Obama-era healthcare law, and if she is confirmed quickly Barrett could be on the Supreme Court when the court hears the case.

But even if the justices agree that the law’s mandate to buy health insurance is unconstitutional because Congress repealed the penalties for not complying, they could still leave the rest of the law alone. That would be consistent with other rulings in which the court excised a problematic provision from a law that was otherwise allowed to remain in force.

Democratic lawmakers, however, sounded alarm bells Monday, the start of four days of hearings before the Senate Judiciary Committee for Barrett.

The party’s vice presidential nominee, Sen. Kamala Harris, who sits on the committee, said Republicans are “trying to get a justice onto the Court in time to ensure they can strip away the protections of the Affordable Care Act.”

“If they succeed, it will result in millions of people losing access to health care at the worst possible time: in the middle of a pandemic,” the California senator said.

Sen. Dianne Feinstein, California’s other senator and the committee’s senior Democrat, said, “Health care coverage for millions of Americans is at stake with this nomination.” And Sen. Sheldon Whitehouse of Rhode Island called Barrett’s nomination a “judicial torpedo aimed” at Affordable Care Act protections, including for preexisting health conditions. Other Democrats on the panel made similar points.

Democrats also repeatedly brought up words Barrett wrote in 2017, when she was a law professor, criticizing Chief Justice John Roberts’ 2012 opinion saving the Affordable Care Act. Barrett wrote that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

After that 5-4 ruling, which split the court along ideological lines, the justices rejected a second major challenge to the healthcare law by a vote of 6-3 in 2015.

The case before the court this year stems from Congress’ decision in 2017 to eliminate the law’s unpopular fines for not having health insurance. Despite repealing the fines, lawmakers left in place the law’s requirement that virtually all Americans have coverage. Texas and other conservative-led states argue that the change makes the requirement unconstitutional and also dooms the rest of the law because the mandate was so central to it.

But the court could simply “sever” the mandate from the law and leave the rest of the law alone. Many observers see that as a likely outcome and note the upheaval that would result across the American healthcare system if the law were to be struck down in its entirety.

Before the Supreme Court’s term began in October, Paul Clement, who argued in the 2012 Affordable Care Act case, said he wasn’t sure that the addition of a new justice would change the outcome of the case. He suggested that it is unlikely that the whole statute will fall.


The state Health Department’s effort to shut down a large auto show in central Pennsylvania over claims it represents a risk to the public will be the subject of an emergency hearing, a state court said late Wednesday.

The order from Commonwealth Court scheduled a Thursday morning hearing at the judicial center in Harrisburg, with social distancing rules because of the pandemic.

The unsigned order also declined to immediately shut down Spring Carlisle over the state’s claim the event runs afoul of a 250-person limit for gatherings in Cumberland County.

Attendees streamed into the fairgrounds Wednesday, the first day of the event put on by defendant Carlisle Productions Inc., also known as Carlisle Events. It is scheduled to run through Saturday.

Business closures and social distancing have saved lives, lawyers for the Health Department said.

“When individuals choose to ignore those safeguards — such as by holding an event anticipating 100,000 attendees — they put the lives of Pennsylvanians at risk and threaten to reverse the significant progress that has been made to resolve this crisis. That dangerous conduct must be stopped before it can occur,” they told the court.

Carlisle Events has held the spring auto show at the Carlisle Fairgrounds since 1976. It typically draws about 100,000 people, although organizers say they expect a smaller crowd for this year’s event.


In a move that could put the Obama-era health law squarely in the middle of the 2020 election, Democratic-led states Friday asked the Supreme Court for a fast-track review of a recent appeals court decision declaring a key part of the law unconstitutional and casting a cloud over the rest.

A coalition of 20 states filed a petition seeking expedited review, according to the office of California Attorney General Xavier Becerra. They hope to get a Supreme Court hearing and decision by this summer, before the November elections. For the court to agree to such a timetable would be unusual, but not unprecedented.

Defenders of the Affordable Care Act are arguing that the issues raised by the case are too important to let the litigation drag on for months or years in lower courts, and that the 5th U.S. Circuit Court of Appeals in New Orleans erred when it struck down the health law's now toothless requirement that Americans have health insurance.

The 5th Circuit's 2-1 decision left the health law in effect for now. Open enrollment season for 2020 has been able to proceed without any disruption.




The U.S. Supreme Court on Monday left a lower court ruling in place that struck down a law making it a crime to sleep in public places when homeless shelter space is unavailable.

A federal appeals court had ruled that the anti-camping ordinance in Boise, Idaho, was cruel and unusual punishment, violating the Constitution's Eighth Amendment. "A state may not criminalize conduct that is an unavoidable consequence of being homeless," the appeals court said.

The Supreme Court denied Boise's appeal Monday without comment, as is its normal practice when declining to grant reviews.

Lawyers for the city argued that Boise wanted to enforce the ordinance "in the parks, foothills, and other public areas not just to keep them safe and sanitary but also to allow users to utilize the public spaces as they were intended to be used." Supporters of the law said people sleeping on the streets are unsafe and make residents feel less safe.



A lawyer for Texas Attorney General Ken Paxton will be in a federal courtroom Tuesday asking three appellate judges to declare the Affordable Care Act unconstitutional, and this time it will be with the full support of the Trump administration.

The U.S. Department of Justice earlier this year announced that the agency, like Paxton, believes the entire law should be struck down, reversing its previous position that certain sections, including a provision allowing states to expand Medicaid, should not be affected by the case.

Opposing them in Tuesday’s oral arguments at the 5th U.S. Circuit Court of Appeals will be lawyers for the U.S. House and 20 Democratic-led states who say striking down the law would wreak havoc on the health care system and put lives at risk.

The showdown will produce a decision that could give the U.S. Supreme Court another crack at deciding whether the 2010 law, a signature achievement of Democratic President Barack Obama, remains in effect.

At stake is health insurance for about 20 million Americans, either directly through the program sometimes called Obamacare or through expanded Medicaid coverage, as well as protection for millions more who have preexisting medical conditions.


Taking a harder line on health care, the Trump administration joined a coalition of Republican-led states Wednesday in asking a federal appeals court to entirely overturn former President Barack Obama’s signature health care law — a decision that could leave millions uninsured.

Congress rendered the Affordable Care Act completely unconstitutional in 2017 by eliminating an unpopular tax penalty for not having insurance, the administration and GOP states told the court.

The “Obamacare” opponents hope to persuade the 5th U.S. Circuit Court of Appeals in New Orleans to uphold U.S. District Court Judge Reed O’Connor’s ruling late last year striking down the law.

If the ruling is allowed to stand, more than 20 million Americans would be at risk of losing their health insurance, re-igniting a winning political issue for Democrats heading into the 2020 elections. President Donald Trump, who never produced a health insurance plan to replace “Obamacare,” is now promising one after the elections.

The Trump administration acknowledged it had changed positions in the case. Early on, the administration argued that only certain key parts of the ACA, such as protections for people with pre-existing medical conditions, should be invalidated. But it said other important provisions such as Medicaid expansion, subsidies for premiums and health insurance markets could continue to stand.

Wednesday, the administration said it had reconsidered in light of O’Connor’s ruling. “The remaining provisions of the ACA should not be allowed to remain in effect — again, even if the government might support some individual positions as a policy matter,” the administration wrote in its court filing.

The Justice Department’s legal brief also seemed to be trying to carve out some exceptions. For example, the administration said the ACA’s anti-fraud provisions should remain in effect.


A divided Supreme Court stopped Louisiana from enforcing new regulations on abortion clinics in a test of the conservative court's views on abortion rights.

The justices said by a 5-4 vote late Thursday that they will not allow the state to put into effect a law that requires abortion providers to have admitting privileges at nearby hospitals.

Chief Justice John Roberts joined the court's four liberals in putting a hold on the law, pending a full review of the case.

President Donald Trump's two Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, were among the four conservative members of the court who would have allowed the law to take effect.

Kavanaugh wrote a dissenting opinion in which he said the court's action was premature because the state had made clear it would allow abortion providers an additional 45 days to obtain admitting privileges before it started enforcing the law.

If the doctors succeed, they can continue performing abortions, he said. If they fail, they could return to court, Kavanaugh said. The law is very similar to a Texas measure the justices struck down three years ago. Roberts dissented in that case.

But the composition of the court has changed since then, with Kavanaugh replacing Justice Anthony Kennedy, who voted to strike down the Texas law. Trump had pledged during the campaign to appoint "pro-life" justices, and abortion opponents are hoping the more conservative bench will be more open to upholding abortion restrictions.

Louisiana abortion providers and a district judge who initially heard the case said one or maybe two of the state's three abortion clinics would have to close under the new law. There would be at most two doctors who could meet its requirements, they said.

But the federal appeals court in New Orleans rejected those claims, doubting that any clinics would have to close and saying the doctors had not tried hard enough to establish relationships with local hospitals.


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