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On January 15, 2020, the Center for Medicare Advocacy joined AARP and Justice in Aging in filing an amicus brief that urges the U.S. Supreme Court to grant immediate review of the health care repeal lawsuit, Texas v. U.S. The case, which seeks to dismantle the entire Affordable Care Act (ACA), is being pursued by several states with the support of the Trump administration.

In December, a divided panel of the Fifth Circuit Court of Appeals ruled that the ACA’s individual mandate is unconstitutional because Congress reduced the penalty for not having health insurance to $0. Then, although it was clear that Congress did not intend to strike down the entire ACA when it eliminated the penalty (most obviously because it left the rest of the law intact), the Fifth Circuit concluded that many of the ACA’s provisions may not be “severable” from the mandate. While keeping the ACA in place for now, it ordered the same lower-court judge who struck down the entire law last year to parse through all of the hundreds of the ACA’s provisions with a “finer-toothed comb” to determine which, if any, can survive. This puts the entire law at risk, including protections for pre-existing conditions, the expansion of Medicaid, and all of the provisions that improved the Medicare program, such closing the Part D Donut Hole, eliminating copayments for preventive services, and extending the solvency of the Medicare Trust Fund.

The amicus brief of the Center and its partners supports California and the other states defending the ACA in requesting that the Supreme Court review the case right away, rather than wait for it to be sent back to the lower court and appealed again. Our brief highlights the ACA’s key protections for older adults and the devastating consequences of nullifying the law. It also emphasizes that the Court should grant review now, rather than allow months or years of additional litigation in the lower courts, because prolonged uncertainty will harm millions of older Americans and people with disabilities who rely on the ACA. The Center supports the immediate grant of Supreme Court review and a decision that the ACA remains constitutional, which would finally put this attempt at judicial repeal to rest.

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