Health Reform WK-EDGE Amicus brief in ACA case urges court to retain preexisting conditions provision
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Tuesday, April 16, 2019

Amicus brief in ACA case urges court to retain preexisting conditions provision

By Tulay Turan, J.D.

The states of Ohio and Montana highlighted Congress’s decision to leave these protections in place when adjusting the individual mandate penalty.

Ohio Attorney General Dave Yost has filed an amicus brief with the Fifth Circuit Court of Appeals urging the court to reverse a lower court's decision that found the Affordable Care Act (ACA) unconstitutional. The state of Montana joined Ohio in its brief.

Yost argues the unconstitutional "individual mandate" can be removed from the ACA without throwing out other provisions in the law, including protections for individuals with preexisting conditions.

"I do not like judicial activism in either its liberal or conservative flavors," Yost said. "Chief Justice Marshall was right when he said it is the province of the courts to say what the law is—but it is also true that the writing of the law belongs to Congress."

A group of 20 attorneys general and governors filed the suit, Texas v. United States, in February 2018, arguing that when Congress reduced the penalty to zero for violating the individual mandate, the mandate became unconstitutional and the remainder of the ACA had to fall with it. Precedent would require the trial court to guess at Congress’s intent, and whether it would have passed the rest of the law if it knew the individual mandate was unconstitutional, according to the brief.

However, Ohio and Montana advocate that when Congress acted in 2017 to reduce the penalty for violating the individual mandate to zero, it expressly left in place protections that would ban insurance companies from denying coverage to people with preexisting conditions.

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