AG Mark Herring Statement on 5th Circuit Ruling that Threatens Virginians’ Healthcare

“This case should have been laughed out of court years ago, but instead, Americans will have to continue living in fear that the Trump Administration and its allies could rip away their healthcare, end protections for preexisting conditions, and drive up healthcare costs for everyone,” said Attorney General Herring. “This fight is far from over, and I promise I will do all I can to protect Virginians’ healthcare from these dangerous, ideologically-motivated attacks.”

In order to protect Virginians’ healthcare, Attorney General Herring and his colleagues intervened to defend the Affordable Care Act in this lawsuit after President Trump switched sides and joined with Republican state attorneys general in trying to strike down the law. When a district court judge in Texas issued a decision in December 2018 finding the ACA to be unconstitutional, Attorney General Herring and his colleagues immediately appealed to the U.S. Court of Appeals for the Fifth Circuit, which has now sent the case back to district court for further proceedings.

If the Trump Administration and its allies are successful in eliminating the ACA with this lawsuit:

• 642,000 Virginians could lose their health coverage, leading to a 96% increase in the uninsured rate in the Commonwealth
• The 3,441,400 Virginians who have pre-existing conditions would lose their protections and insurance companies would be able to deny or drop coverage and charge more for those pre-existing conditions
• 289,081 Virginians in the marketplace would have to pay more for their coverage
• 109,517 Virginia seniors could have to pay more for their prescription drugs
• Insurance companies would be allowed to discriminate against women by charging them higher premiums
• $1.15 billion in tax credits that helped 335,000 Virginians afford insurance in 2017 would be ended
• Funding from our nation’s public health system would be stripped, including work to combat the opioid epidemic
• Billions in federal aid for health care would be stripped, including $458 million in FY 2019 and $1.9 billion in FY 2020

In briefs and at oral argument, Attorney General Herring and his colleagues highlighted the consequences of striking down the Affordable Care Act. Such a ruling would affect nearly every American, including:

• 133 million Americans, including 17 million kids, with preexisting health conditions
• Young adults under 26 years of age, who are covered under a parent’s health plan
• More than 12 million Americans who received coverage through Medicaid expansion
• 12 million seniors who receive a Medicare benefit to afford prescription drugs
• Working families who rely on tax credits and employer-sponsored plans to afford insurance

After failing to repeal the ACA in Congress, Republican attorneys general and the Trump Administration are pushing this case based on a novel theory that the Republican tax bill passed in 2017 somehow rendered the entire ACA unconstitutional.

On December 14, 2018, Judge Reed O’Connor of the Northern District of Texas issued his decision agreeing with the plaintiffs. In response, Attorney General Herring and his colleagues filed a motion to stay the effect of that decision and to expedite resolution of this case. The District Court granted that motion on December 30, 2018. On January 3, 2019, the coalition continued their legal defense in the ACA and formally filed a notice of appeal, challenging the District Court’s December 14 opinion in the Fifth Circuit.

In March of this year, Attorney General Herring and the coalition of state attorneys general filed their opening brief arguing that the plaintiffs do not have standing to challenge the minimum coverage provision, because the individual plaintiffs are not injured by a provision that now offers a lawful choice between buying insurance and paying a zero-dollar tax. The attorneys general further argue that the state plaintiffs also lack standing, because there is no evidence that the amended provision will require them to spend more money. Lastly, the District Court wrongly concluded that the minimum coverage provision was unconstitutional, and even if it were, there would be no legal basis for also declaring the rest of the ACA invalid—including its provisions expanding Medicaid, reforming Medicare, and providing protections to individuals with preexisting health conditions.