A federal lawsuit that could end up harming millions of Texans kicks off in earnest this morning in Fort Worth. A coalition of states, led by Texas and its attorney general, Ken Paxton, will argue in front of a federal judge that the Affordable Care Act, despite being ruled constitutional by the U.S. Supreme Court in 2012, is unconstitutional today because of Congress' 2017 decision to repeal the individual mandate, which required those without health insurance to pay a tax penalty.
Paxton wants U.S. District Judge Reed O'Connor to issue an injunction that would allow insurers around the country to stop issuing policies to those with pre-existing medical conditions, ending one of the most popular provisions of Obamacare. If O'Connor is unwilling to go that far, Paxton and his fellow plaintiffs have asked that insurers in their states alone be allowed to deny coverage to those with existing health problems.
When the Observer asked the attorney general why he wanted to strip out coverage for those Texans who are pregnant, suffer from mental illness or have chronic conditions like heart disease, his office sent us the following response:
"Texas's lawsuit takes issue with Washington's unconstitutional control of the American healthcare system. Texans should be free again to make their own healthcare choices, including which doctor they want to see," Marc Rylander, Paxton's director of communications said.
Rather than fighting against the U.S. Department of Justice, which usually defends federal laws challenged in court, Paxton and his fellow travelers are facing another coalition of states, this one led by California, looking to defend the law. Jeff Sessions' Justice Department has bowed out of the fight, saying in June that it agrees with Paxton.
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Outside the courthouse Wednesday morning, Justin Nelson, the Democrat running to unseat Paxton in November, plans to hold a rally against a lawsuit he says is without merit.
"On the actual merits, the arguments make no sense," says Nelson, an adjunct professor at the University of Texas Law School and partner at Houston-based Susman Godfrey. "Congress could have decided to take away [coverage for] pre-existing conditions when they took away everything else. They decided not to have the mandate be taxable, but that is a separate question from whether the entire ACA should go away. It's not a strong argument. They're trying to say [U.S. Supreme Court Chief Justice] John Roberts based his opinion on [the mandate] being a tax. Now there's no tax, so therefore there's no basis for the law. That's just not how it works. There's a whole number of ways that the law can be sustained."
When Paxton first filed his lawsuit against Obamacare in February, Nelson says, the attorney general, still under felony indictment for securities fraud, was worried about shoring up his base rather than what's ended up being a tough general election fight.
"I think it shows that what Paxton values more than anything else is being a political warrior for the tea party. If he actually cared about the people of Texas across the board, then why would he bring this suit?" Nelson says. "If he were trying to appeal to the vast majority of Texans, why would he bring this suit? Paxton made a political calculation that the best way to protect himself, especially after his indictment, is to solely care about his tea party base."