NEW ORLEANS, La. (WVUE) - A hearing on a lawsuit seeking to have the Affordable Care Act invalidated thrust a New Orleans federal appeals courts into the national spotlight Tuesday (July 9) and attracted scores of spectators.
People lined up outside the courthouse in steamy heat in hopes of getting a seat in the main courtroom or an overflow area.
Louisiana is one of 18 states involved in the suit against former President Barack Obama’s landmark health care law. Attorney General Jeff Landry, a Republican, intervened in the suit on Louisiana’s behalf, even though the state’s Democratic governor, John Bel Edwards, supports the ACA.
Also involved in the litigation are two small business owners, Neill Hurley and John Nantz.
Robert Henneke, of the Texas Public Policy Foundation, spoke on their behalf before the panel of judges and later to news media outside the courthouse.
"They're here because of how much the Affordable Care Act has hurt them. Small business owners trying to support their family, they've lost the choice of their doctor, they've increased the cost of their premiums,” Henneke said.
In 2017, the then GOP controlled Congress voted to eliminate the ACA’s individual mandate, which requires most Americans to have health insurance or pay fines to the IRS.
Plaintiffs in the suit, which also include the Trump administration, say since Congress invalidated the individual mandate “tax” the whole health care reform law is unconstitutional.
Attorney August Fentje represented the U.S. Justice Department and emphasized that argument before the judges.
“Our position is that the whole law is inseparable,” Fentje said.
But Douglas Letter, one of the attorneys representing the current U.S. House of Representatives, argued against that.
“That is absolutely wrong,” he said.
Tulane constitutional law Professor Keith Werhan said this is the third major challenge to the ACA.
"The mandate remains on the books, but there’s no penalty attached, so the argument is that it’s no longer a tax, and therefore it’s not constitutional because a tax is revenue raising, and there’s no revenue associated with this,” Werhan said.
It is estimated that over 20 million Americans would lose health coverage if the ACA is struck down.
According to Edwards, thousands of Louisiana residents would be harmed if the law is declared unconstitutional.
“People need to understand that all of the protections we have for pre-existing conditions come from the Affordable Care Act, the Medicaid expansion comes from the Affordable Care Act. The ability to stay on your parents’ insurance until you’re 26 comes from the Affordable Care Act, so it’s hugely important,” Edwards said. “We have 850,000 people in Louisiana with pre-existing conditions. Now, I happen to be optimistic. I don’t believe the 5th Circuit is going to affirm the district court ruling, but you never know what a court is going to do.”
Whatever the 5th Circuit Court decides, the case is expected to wind up before the U.S. Supreme Court, which earlier upheld the ACA.
Werhan doubts the high court would do away with the law.
"The amount of disruption in the health care industry is almost unimaginable if the court goes along with that. There’s virtually no chance the Supreme Court ultimately will adopt that argument, at least the five justices who’ve rejected challenges before will almost certainly reject this challenge,” he said.
Henneke, however, is certain the law is illegal.
“Obamacare is unconstitutional. Going back to the original Supreme Court pronouncement, it is unconstitutional that people have to be forced to buy what the federal government tells them to do so,” Henneke said.
There is no indication when the appeals court will rule on the matter.