In a reversal of its prior position, the Department of Justice yesterday told the Fifth Circuit Court of Appeals that it should affirm a district court decision that struck down the entire Affordable Care Act.
 
DOJ last year told the lower court it should strike down the ACA’s protections for people with pre-existing conditions because they were inseparable from the individual mandate, but said the other ACA provisions could remain in place. The lawsuit was brought by 20 Republican-led states. U.S. District Court Judge Reed O'Connor last year struck down the entire ACA because Congress repealed the tax penalty enforcing the law's individual mandate. O'Connor said that the law can stand while his ruling is being appealed. Twenty-one Democratic attorneys general are appealing the ruling and the House of Representatives has intervened to defend the ACA in the case.
 
In opening briefs filed yesterday, the AG appellants argue that the plaintiffs lack standing to bring the case and that every provision of the ACA remains valid. Counsel for the House wrote, “By leaving the rest of the Act intact when it reduced the shared-responsibility payment to zero, the 2017 Congress unambiguously established that it intended the rest of the law to function in the absence of an enforceable mandate.”
 
The AHA will file an amicus brief on April 1 vigorously urging the court of appeals to reject the lower court’s decision. In a friend-of-court brief filed last year, AHA and other national organizations representing hospitals and health systems urged the district court not to accept the plaintiff’s argument that elimination of the penalty made the entire ACA invalid.
 
In a statement today, AHA President and CEO Rick Pollack said, “America’s hospitals and health systems oppose the Department of Justice’s misguided decision calling on the courts to strike down the Affordable Care Act in its entirety. The position is unprecedented and unsupported by the law or the facts. Millions of Americans would lose the coverage they have relied on for years. We have made too much progress in coverage and access to care for patients to go backwards. If courts were to adopt the DOJ position, Medicaid expansion would be reversed and protections for people with chronic and pre-existing conditions would cease to exist.” 

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