A federal judge appeared to be sympathetic to the legal argument used by 20 states to make the case for striking down Obamacare’s pre-existing condition protections during a critical hearing on Wednesday, according to a report.
U.S. District Judge Reed O’Connor presided over the hearing Wednesday in Fort Worth, Texas on the lawsuit brought by Texas and 19 other states. The hearing was on a preliminary injunction to halt federal enforcement of the law while the lawsuit makes its way through the courts. If O’Connor grants it, insurers would no longer be required to include protections for people with pre-existing conditions in Obamacare plans.
O’Connor did not immediately rule on the lawsuit’s motion for an injunction during the hearing.
The crux of Texas’ lawsuit is that Obamacare cannot stand because the individual mandate’s financial penalty will be zeroed out starting in 2019. A collection of 17 states led by California defended the law, arguing that it wasn’t Congress’s intent to get rid of the rest of the law when it repealed the financial penalty in tax reform last year.
But O’Connor, an appointee under former President George W. Bush, seemed skeptical of that argument, according to a report in Modern Healthcare.
He said that Congress’s intent should be put against the original text of the law that said that the mandate was essential to the rest of Obamacare.
“It does seem for majority of cases, the Supreme Court says to look at the original legislation as enacted,” O’Connor said in Modern Healthcare’s recounting. “Why would I not? Let’s assume I don’t buy the argument it is still a tax and believe the mandate should fall and I get to severability, why wouldn’t I look at those cases?”
The law says that the mandate is essential to creating an “effective” insurance market where plans with protections for pre-existing conditions can be sold.
Texas’s attorneys argued that with the mandate penalty removed, the rest of the law should go away too.
Texas Attorney General Ken Paxton said at the hearing that 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,” according to a press release from his office.
Paxton was referring to a Supreme Court ruling in 2012 that upheld the constitutionality of the mandate by calling it a tax.
The Justice Department declined to defend Obamacare in court, and said that it supports the lawsuit but only up to a point. The department believes that the pre-existing condition protections should be struck down in response to the lawsuit, but not the entire law.
The Justice Department asked O’Connor to postpone any judgment until after open enrollment in Obamacare’s exchanges this fall to not spook insurers, according to Modern Healthcare.
