As yet another Republican legal challenge to the Affordable Care Act makes its way through the courts, Colorado Democrats are sounding the alarm over its potentially devastating impact on the state’s health care system — and blasting Senator Cory Gardner for his continued silence on the lawsuit.
“This would do irrevocable harm to consumers,” said Adam Fox, director of strategic engagement for the Colorado Consumer Health Initiative, on Tuesday, July 9. “It would leave millions without insurance options, it would throw our health care system into chaos, and it would threaten our state’s fiscal stability.”
Fox and other health policy experts spoke to reporters as the Fifth Circuit Court of Appeals in New Orleans heard oral arguments in Texas v. Azar, the latest in a long line of Republican attempts to overturn the ACA, also known as Obamacare, through Congress and the courts.
The lawsuit was filed last year by twenty Republican state attorneys general, who argue that the elimination of the ACA’s individual mandate to purchase insurance — accomplished in Republicans’ 2017 federal tax overhaul — means the entire law should be nullified. Even right-leaning legal scholars have called their argument “absurd,” but supporters of the ACA are worried that won’t matter to an increasingly partisan, GOP-controlled Supreme Court, where the case is expected to eventually wind up.
“This case is really dangerous,” said Fox. “It essentially argues that the entirety of the ACA should be ruled unconstitutional because Congress repealed one small component of an expansive and transformative law.”
Democrats have pressed Gardner, widely viewed as the most vulnerable Republican senator in the 2020 election, to take a position on Texas v. Azar, but he has repeatedly declined to comment, most recently claiming in May that he hadn’t seen a brief filed by the Trump administration in support of the lawsuit. Gardner’s office did not respond on Tuesday to multiple inquiries regarding his views on the lawsuit.
“Senator Gardner remains in lockstep with Trump’s reckless health care agenda,” said Alyssa Roberts, spokeswoman for the Colorado Democratic Party, in a statement. “This time, they’re trying a lawsuit that would drive up costs, eliminate coverage protections, and rip health coverage away from millions.”
In 2017, Gardner voted for three Republican proposals that would have partially repealed or replaced the ACA, each of which failed. If successful, the plaintiffs’ case in Texas v. Azar would go farther than any of those bills, striking down the law in its entirety and abruptly eliminating a wide range of policies and programs on which millions of people have come to rely for health coverage.
With the American health care system suddenly reverted to the pre-ACA status quo, insurers would no longer be required to offer coverage to people with pre-existing conditions, putting over 2.3 million Coloradans at risk of losing their insurance. Key subsidies for people purchasing coverage on the state’s insurance marketplace would be eliminated. And federal funding for state Medicaid expansions — arguably the ACA's most consequential policy outcome — would disappear overnight, jeopardizing coverage for the 554,000 people who have been insured through Health First Colorado, the state's expanded Medicaid program, since 2013.
“Without the federal dollars, there's really no possibility that Colorado would be able to maintain the expanded Medicaid coverage as it currently is," said Fox. "And the vast majority, if not all, of those Coloradans would likely lose coverage because we wouldn't have the state dollars to fund that."
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"We have a hard enough time balancing the budget now," said State Representative Daneya Esgar, a Democrat from Pueblo. "We have so many priorities that we must fund to take care of every Coloradan. If this were to take away funding for the Medicaid expansion here, that would just be one more thing that we'd be having to stretch money [to cover]."
More than 400,000 Coloradans would lose their coverage if the courts ruled in favor of the Texas v. Azar plaintiffs, according to a study released earlier this year by the Urban Institute. An extensive body of public-health research has estimated that uninsured Americans face up to a 50 percent higher risk of premature death than those who are insured, meaning that for every 455 people who lose insurance, one will die of preventable causes annually. Based on those estimates, up to 880 more Coloradans could die prematurely every year if the ACA were struck down without anything to replace it.
Colorado Attorney General Phil Weiser in January joined Democratic officials from nineteen states in a "motion to intervene" in the lawsuit, and has denounced the Trump administration's refusal to defend the law's constitutionality. "By calling for the invalidation of the entire ACA, the Justice Department is undermining the rule of law and threatening to upend the American health care system," Weiser said in a statement Tuesday.
Following oral arguments in the case, the Fifth Circuit Court of Appeals — considered one of the federal judiciary's most conservative venues — will issue its ruling in Texas v. Azar in the coming months, setting up a potential Supreme Court showdown later this year.