SOCIAL DISTANCING: SIX FEET APART IS BETTER THAN SIX FEET UNDER!
GOP Plows Forward on Plans to Kill Obamacare, Pandemic Be Damned
The worsening coronavirus outbreak may be stretching the limits of the U.S. health care system and overwhelming state governments, but that isn’t deterring a group of 18 state attorneys general from plowing ahead with a lawsuit that could overturn the Affordable Care Act within a year—a move that could disrupt the health care system at a time of deep crisis.
This fall, Texas Attorney General Ken Paxton is slated to argue in the U.S. Supreme Court on behalf of 17 Republican attorneys general—and against 21 Democratic attorneys general—that Obamacare is unconstitutional and must be struck down immediately.
Representatives for five of those attorneys general—from the states of Arkansas, Georgia, Mississippi, Missouri, and Tennessee—confirmed to The Daily Beast that the coronavirus outbreak has not changed their plans to try and kill the health care law as parties to the case of Texas v. California. Their steadfastness comes even as their states are beginning to feel the acute impact of the coronavirus’ spread. Georgia currently has over 1,700 coronavirus cases, while Tennessee has nearly 1,000 and the others have anywhere from 350 to 600.
The other 13 state attorney general offices, including that of lead state Texas—where the state’s most populous counties have issued shelter-in-place orders to counter the spread of the coronavirus—either declined to comment or did not respond to requests for comment. None of them have announced any plans to reconsider their participation in the lawsuit.
Their determination to kill the law, no matter the circumstances, mirrors President Trump’s. Asked at a press conference last week whether the virus had changed his plans to press ahead in court, Trump affirmed that "what we want to do is terminate it.”
If the Trump administration and these states succeed in repealing the ACA, the impact on the country’s public health system would be immense, pandemic or not. That the decision could come early next year—at the tail end or recovery stage of a devastating outbreak—gives it a seismic significance for the 20 million Americans covered by the law, the 84 million who are uninsured or under-insured, and the insurers, hospitals, and governments that have adapted to Obamacare over the course of a decade.
While Congress has passed legislation to provide free coronavirus testing to everyone, health insurance to cover related treatments and other ailments is another matter. Last week, an uninsured Boston woman who contracted COVID-19 and went to the hospital was sent a bill for $35,000. On Wednesday, the mayor of Lancaster, California, confirmed that a 17-year old boy died from COVID-19 after a local hospital turned him away for treatment because he didn’t have insurance.
Unless legislators step in with a ready-made replacement for Obamacare—which is unlikely—at least 20 million Americans would lose their coverage if the Supreme Court strikes it down.
The Democratic attorney general leading the defense of the ACA in court, Xavier Becerra of California, has said that “no one should want to risk access to public health” in the “new reality” created by the COVID-19 outbreak.
“The only thing worse than a public health pandemic is a public health pandemic without health care,” said Jesse Ferguson, a Democratic strategist. “It's hard to imagine their sales pitch for a lawsuit that takes away health care for 20 million Americans as we face a pandemic. It's like watching the Chernobyl disaster and deciding to bulldoze the fallout shelters.”
The crux of the latest effort to unravel Obamacare focuses on the law’s so-called “individual mandate” that all Americans purchase health care coverage or face a steep tax penalty. Since the 2017 GOP tax law made that penalty toothless, Texas and company argue that the government can’t force a mandate that isn’t backed up by its authority to tax. Even conservative legal scholars have called this case far-fetched, but a string of GOP-appointed federal judges have ruled in favor of it, sending the matter to the Supreme Court.
Those state attorneys general who confirmed they’ll continue backing the lawsuit largely framed the move as a matter of law, not health care policy.
“When the United States Fifth Circuit Court of Appeals declared the Affordable Care Act’s individual mandate unconstitutional back in December, it provided the answer for which Tennessee, among other states, joined the lawsuit,” said Samantha Fisher, spokesperson for Tennessee Attorney General Herbert Slattery. “It’s always been a question of legality, not health care policy. And that remains our position.”
Others merged those arguments. “Two different courts have now agreed with us that the ACA is unconstitutional,” said Georgia Attorney General Chris Carr in a statement to The Daily Beast. “Georgians and all Americans deserve better—a constitutionally sound law that improves health outcomes, protects pre-existing conditions, increases choice and lowers costs.”
“Thankfully the Supreme Court has found it necessary to review our case,” said Arkansas Attorney General Leslie Rutlege in a statement. “Once the Affordable Care Act with its unconstitutional mandate [is] behind us, time will come for Congress to move forward and create a comprehensive healthcare law that will work with states and provide coverage for those with pre-existing conditions.”
Should the Supreme Court strike it Obamacare, Capitol Hill would have to step in with a replacement for the ACA—which in itself poses another major problem. When Republicans controlled both chambers of Congress in 2017, they were unable to pass their own Obamacare replacement. Since then, key GOP lawmakers like Sen. Lamar Alexander (R-TN), chairman of the Senate Health Committee, have taken more steps to shore up the law than to dismantle it.
Alexander has been critical of the Republican states’ argument in the Texas case, calling it “as far-fetched as any I’ve ever heard.” He and other GOP senators have expressed dismay that their vote for the GOP tax bill is now being used effectively as a vote to repeal Obamacare.
After hearing arguments this fall, the Supreme Court could render a ruling in the case as early as spring of 2021. It’s unclear how long the coronavirus public health emergency will last, but it’s widely accepted that the U.S. will be dealing with its fallout for months, if not years, after it tapers off.
Tara Straw, a health care analyst at the left-leaning Center for Budget and Policy Priorities who has studied the Texas case, said that pressing ahead with efforts to overturn the ACA right now is “unconscionable.” She predicted the decision could have far-reaching consequences: if the coronavirus outbreak spurs a long period of high unemployment, for example, far more than 20 million people could lose coverage if the ACA is struck down.
That could also shift heavy cost burdens to state governments that are facing long-term financial stress because of the crisis, and hurt broader recovery if people are directing more of their income to medical care.
“Talk about compounding a crisis,” said Straw.
Mandel Ngan / Getty Images
An abortion rights activist holds placards outside the US Supreme Court in 2016 before the court struck down a Texas law placing restrictions on abortion clinics.
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Two federal judges issued orders on requiring Texas and Ohio to allow abortion clinics to stay open and keep providing services in the states Monday. Texas Attorney General Ken Paxton had ordered a ban on abortions last week, saying it did not qualify as “essential” health care (except in cases of a threat to the life of the pregnant person), and any scheduled procedures to be postponed amid the coronavirus outbreak in order to mitigate the spread of the virus and devote any medical resources to treating it. Ohio’s Department of Health had issued the same interpretation.
Planned Parenthood and the American Civil Liberties Union quickly filed emergency lawsuits, arguing that the orders were unconstitutional and demanding they be halted and clinics in the state be allowed to continue their work. Judges granted their request for temporary restraining orders to keep clinics open in both states Monday evening.
In his decision, US District Court for the Western District of Texas Judge Lee Yeakel said that Texas’s order would cause “irreparable harm” to abortion clinics and their patients, and that this harm “outweighs” Texas’s reason for the order.
“Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”
Yeakel said that only the Supreme Court can clarify if a ban on abortion can be applied during a national crisis, and that he will not try to predict what the Supreme Court will decide if the case against Texas’s ban reaches the justices. His temporary restraining order will prevent the ban from affecting clinics in Texas while the case moves forward and expires April 13 (though it could be extended).
The decisions in Texas and Ohio come hours after Planned Parenthood, alongside a coalition of abortion rights organizations, filed a series of lawsuits in three other states as well, seeking similar judgements preventing Oklahoma, Iowa, and Alabama from temporarily banning abortion as part of their plans to mitigate the coronavirus pandemic.
Over the past week, all five states had issued similar interpretations of state executive orders, suspending all “nonessential medical procedures,” saying abortion services were not essential and, in some cases, threatening criminal action against medical workers who violated the order.
Planned Parenthood, the American Civil Liberties Union, and the Center for Reproductive Rights quickly joined together to respond, arguing that the conservative states with anti-abortion legislative histories were “taking advantage” of the coronavirus crisis to effectively ban abortion in their states, and that the orders were unconstitutional. Each of the lawsuits demand an “emergency stay” on the orders so that the clinics in those states can reopen or stay open and continue to provide abortion care. The groups were joined in the press conference by the American College of Obstetricians and Gynecologists (ACOG) and the Abortion Care Network.
“It's not surprising that the states that are now using the COVID crisis to stop people from getting abortion care are the very same states that have a history of passing laws to ban abortions or using sham rationale to shut down clinics,” Jennifer Dalven, the director of the Reproductive Freedom Project with the ACLU, said on a call with the press Monday.
Since the coronavirus reached the US and started spreading at breakneck speed — by Monday there were around 159,000 confirmed cases and nearly 3,000 deaths in the US, according to the latest data compiled by Johns Hopkins — governors across the country have been issuing order after order to help enforce social distancing, prevent large gatherings, and limit the spread of the virus.
Over the past week, each of the governors in the five states ordered “nonessential” medical procedures to be postponed for several weeks, stating that this measure would help dedicate as many medical personnel and resources as possible toward treating the virus. Following this order, each of those states then specified that they considered abortion services “nonessential” and instructed Planned Parenthood and other abortion clinics in the states to shutter.
In Texas, which issued its ban last Monday, state Attorney General Ken Paxton followed up on Gov. Greg Abbott’s order, specifying that any medical worker providing abortion care before the order’s expiration date of April 21 could be fined $1,000 or face jail time of up to 180 days. Paxton even ordered clinics to stop issuing medication abortion to patients, which can be provided outside of the clinic via telemedicine.
Ohio’s order caused much confusion among clinics and reproductive rights organizations. On March 17, Gov. Mike DeWine ordered the cancellation of all nonessential medical procedures, and shortly thereafter, Ohio’s deputy attorney general, Jonathan Fulkerson, sent letters to several abortion clinics in the state, accusing them of being in violation of the order. The clinics’ lawyers quickly responded, assuring Fulkerson’s office that they were in compliance with the order and were taking all necessary precautions. After some back and forth, Ohio’s Department of Health eventually issued further guidance saying that the ban applied to abortion clinics.
Alabama, which passed a near total ban on abortion over the summer that was blocked in court, issued its own order calling for the close of abortion clinics Saturday night. The order threatened criminal penalties for doctors who violated it, but was vague about exactly what services or actions would violate the order.
This vagueness “puts doctors in a terrible position of being forced to risk their licenses and risk prosecution in order to provide care,” Dalven said.
Planned Parenthood quickly filed a lawsuit in Texas on Thursday — the first of the five suits — arguing that the order was in violation of Roe v. Wade. Each of the ensuing lawsuits used similar language and arguments.
The organizations have requested emergency rulings in each of the cases for Monday evening, but it is unclear when those rulings might actually occur.
Hundreds of patients seeking reproductive health care have already been affected by the orders, the coalition said. In Alabama, when the clinics had to call patients to cancel their abortion appointments by phone, many of the patients cried, Dalven said.
Many patients seeking abortions in Texas had been traveling to Oklahoma for care since the ban came down last week, but now that Oklahoma has issued a ban as well, many people are stuck and unsure of what to do, Nancy Northup, the head of the Center for Reproductive Rights (which is leading the Oklahoma lawsuit), said on the call.
“No one stopped needing sexual and reproductive health care in a public health crisis,” acting Planned Parenthood president Alexis McGill Johnson said during the press conference. “People still have sex. They still need birth control, STI testing and treatment, and access to safe and legal abortion.”
Each representative of the five groups joining and supporting the lawsuits argued that abortion is in fact essential health care, and that halting that care does not help to mitigate the spread of COVID-19.
“Stopping [patients] from getting an abortion doesn't lower the risk of transmitting the virus,” Dalven said. “It just forces people to stay pregnant and have children against their will.”
Planned Parenthood clinics around the country that remain open are taking extensive measures to mitigate the spread of COVID-19 at their clinics, Planned Parenthood assured press on the call. They are spacing out patients to limit the number of people in the office, encouraging telemedicine and medication abortion, and making sure their staff has protective equipment.
However, even in states that are not forcing clinics to close, the precautions are beginning to cause barriers to access, as some clinics stop taking new appointments or delay patients’ appointments in order to not overwhelm and crowd the clinics.
On Monday, California’s attorney general, Xavier Becerra, sent a letter to the US Department of Health signed by 21 state attorneys general demanding increased access to telemedicine reproductive care. The attorneys general asked the Trump administration to remove the regulation of mifepristone — a drug used in medication abortion — so that it could be prescribed in a pharmacy like a normal drug, instead of requiring clinics to give it directly to patients, forcing them to come in and expose themselves and others to increased risk of COVID-19.
UPDATE
This story was updated following a decision by a judge to strike down Ohio's abortion ban as well.
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