Democratic-led states ask Supreme Court to quickly review Affordable Care Act’s legality

A coalition of Democratic-led states on Friday asked the Supreme Court to consider the legality of the Affordable Care Act during its current term, which would mark the justices’ third review in the near-decade history of the health-care law.

The request comes two weeks after a federal appeals court struck down part of the law and sent back to a lower court the question of whether the rest of the sprawling statute can stand without it.

The ruling, by a panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, had little immediate effect on the nation’s consumers because the section the judges invalidated – the requirement that most Americans carry health insurance – was all but removed two years ago by a Republican-led Congress.

But in sending the rest of the law back to the Texas judge who had ruled all of it unconstitutional, the appeals court opinion left in limbo significant changes the ACA has brought about in the nation’s health-care system. They include an expansion of Medicaid in three dozen states, insurance subsidies for millions of people who buy health plans through ACA marketplaces and the ability of young adults to stay on parents’ insurance policies until they are 26. And most politically volatile: consumer protections for people with preexisting medical conditions.

In asking the Supreme Court to take the case this term, the coalition, led by California Attorney General Xavier Becerra, a Democrat, emphasized the uncertainty for patients and the health-care industry alike. Handing the fate of much of the ACA back to the original trial judge “would only prolong and exacerbate the uncertainty already caused by this litigation,” the group’s 41-page petition notes.

“The actions of the lower courts have cast doubt on hundreds of other statutory provisions that together regulate a substantial portion of the nation’s economy,” the petition says. “States, health insurers, and millions of Americans rely on those provisions when making important – indeed, life-changing – decisions.”

The House of Representatives joined with the coalition in asking the Supreme Court to take the case. “Every day that Republicans’ anti-health care lawsuit is allowed to endure is a day that American families will be forced to live in uncertainty and fear,” said Speaker Nancy Pelosi, D-Calif., referring to the litigation filed two years ago by Texas’s attorney general and GOP counterparts.

Becerra is asking the court to expedite consideration because it is late for the justices to be accepting new petitions for arguments and decisions this term. The court generally closes its docket for a current term by the end of January. But in extraordinary cases that have a deadline – such as last term’s case concerning printing of Census forms – the court makes exceptions.

The court already has a heavy election-year caseload – including federal protection for LBGT workers, gun rights, abortion laws and the efforts by prosecutors and House Democrats to secure President Donald Trump’s financial records. Despite the states’ argument, the justices may decide to let the case play out in lower courts before getting involved.

The coalition of 20 states plus the District proposes an accelerated briefing schedule so that the court could consider adding the case at its private conference scheduled for Feb. 21. If the court agrees, the lawyers suggest the case be heard on April 29, the last day of scheduled oral arguments for the term, or at a special sitting in May.