Democratic candidate for Texas attorney general Justin Nelson talks to Michael Lummus ahead of Wednesday's Affordable Care Act hearing in Fort Worth.EXPAND
Democratic candidate for Texas attorney general Justin Nelson talks to Michael Lummus ahead of Wednesday's Affordable Care Act hearing in Fort Worth.
Stephen Young

Protesters Call Out Paxton as Texas Attorneys Argue to End Obamacare

It's hard to figure out if any of this is going to matter.

An hour before a hearing that could go a long way toward determining the final fate of the Affordable Care Act, and Justin Nelson, the guy trying to take down the guy trying to take down Obamacare and its most popular provisions, is doing his best.

The civil attorney and University of Texas adjunct law professor and his team are posted up at Burnett Park in Fort Worth, across the street from the city's federal courthouse. They've got a stage and some big speakers set up, ready to tell the crowd about what Nelson views as a frivolous lawsuit, one that adversary Ken Paxton filed to placate his tea party base.

The problem is, despite 91 percent of Americans believing that it's at least "somewhat important" that the ACA's protections for people with pre-existing health care conditions remain law, only a couple of dozen people who aren't reporters or campaign staffers are in the park. It's clear that Paxton isn't yet facing widespread condemnation for his stand against the law, at least not in Fort Worth, one of the reddest big cities in the country.

Those who did show up, however, were committed and knowledgeable, the kind of people who seem sure to tell their friends and neighbors that Texas' incumbent attorney general is, in addition to being under felony indictment, trying to take away sick Texans' health insurance.

"The ACA is not a perfect law. It was put forward and passed as a compromise measure, something Republicans themselves initially supported,"  Benbrook's Gary Fragosso said. "Now that they're in power, they're trying to undermine it. Again, it's not perfect, but I think we need to start there and make an effort to fix it and improve it, rather than doing what they're trying to do here today — get rid of it. ... Paxton isn't just a little bit out there, he seems to be way out there. The fact that he's the one bringing this lot eliminates any notion that it's a good idea."

Across the street from Nelson's event, Robert Henneke, a lawyer with the Texas Public Policy Foundation, who's helping argue the case for the plaintiffs, told reporters the ACA is causing people to lose their health insurance.

"The promises from the last administration of 'If you like your doctor, you can keep your doctor. If you like your health insurance plan, you can keep your health insurance plan,' that was a lie," Henneke said. "The system is crumbling, and as it does, it continues to provide worse and worse health care for Americans who have no other choice but to purchase health care plans on the individual market."

As Henneke spoke, Michael Lummus interrupted him from his wheelchair.

“Why you lying, boy?” the 49-year-old unemployed man from Alvarado said. “That Obamacare saved my life and people like you want to kill people like me because we can't work. I'm trying to find a job, but they ain't going to cover me if you take away pre-existing conditions.”

Lummus said that without the Affordable Care Act, he wouldn't have been able to pay for medical treatments for his bone disease.

Inside the courtroom, attorneys fighting the law told U.S. District Judge Reed O'Connor that Congress' decision to end the individual mandate, which required those without health insurance to pay a tax penalty, made the ACA unconstitutional. It should be up to the state to decide whether insurance providers are required to cover those looking for coverage who already have health problems, the plaintiffs argued.

“The Supreme Court held Obamacare was only tethered to the Constitution by a very thin thread — the fact that the individual penalty raised some revenue. Congress severed that thin thread with the tax act of 2017, and all of Obamacare must fall,” Paxton, who skipped the hearing, said Wednesday afternoon. “On some of the most important issues, the Department of Justice under both President Trump and President Obama agreed with our position. Texans and other Americans should be free again to make their own health care choices, including which doctor they want to see.”

Attorneys for the U.S. Justice Department, which has opted out of defending Obamacare because it agrees with Paxton that the law is unconstitutional, did hedge a bit Wednesday, urging O'Connor not to issue a nationwide injunction against the law until currently open state health insurance marketplaces close in December or January.

The coalition of states defending the law told O'Connor that millions of Americans would lose their health insurance, should he decide to invalidate the law.

“Plaintiffs aren’t seeking to maintain the status quo,” Neli Palma, a deputy attorney general in California, said, according to reporters in the courtroom. “They are seeking to blow it up.”

O'Connor did not issue a ruling on the request for injunction Wednesday. Paxton and his fellow plaintiffs have asked that the judge take action before Jan. 1. 

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