Campaign Action
There's a slim chance that George W. Bush appointee Judge Reed O'Connor is enough of a partisan that he sees the flop sweat his fellow Republicans are shedding right now at the prospect of more bad news for Americans' health insurance. He might just heed the pleas of the Trump administration to wait until after the midterm elections to strike down the Affordable Care Act so as not to drive irate voters to the polls in revolt.
Of course, he might not rule against the law at all, but that is looking highly unlikely, despite the legal consensus that this is "a dog of a case"—and that's coming from a hard-core conservative opponent of the law at the Hoover Institute. Legal professor and healthcare expert Timothy Jost was at the hearing last week and is, to say the least, pessimistic.
The devastating consequences of his potential decision in the case before him were of no interest to Judge O'Connor, who showed no sign of having read the amicus briefs filed by virtually every stakeholder in the American healthcare system—doctors, hospitals, insurers, patient groups, consumer organizations, small businesses, older Americans, as well as numerous health economists and public health experts—demonstrating those consequences. He also showed absolutely no interest in the announced intentions of the Senators who had voted for the amendment to the ACA that had provoked the lawsuit.
O'Connor gave every appearance of having already decided how he's going to rule on the case, ignoring the defense of the law from two attorneys from California, which stepped up along with 16 other Democratic states to defend the ACA when the Trump administration decided to argue against it. None of the defense's argument, Jost reports "was of any interest to Judge O'Connor. Rather he questioned the attorneys for the next hour trying to elicit support for the plaintiffs' arguments." The most anyone can hope for at this point, it seems, is that he did listen to the Department of Justice lawyer who was there "begging the court not to eliminate preexisting condition protections immediately and not to rule on the case until after the 2019 open enrollment period ends (incidentally, after the midterm elections)." He might very well wait, but that delay would only be a temporary win for Republicans.
Right now, voters across the spectrum overwhelmingly want to preserve protections in Obamacare for people with pre-existing conditions. How overwhelming? This much: 81 percent of voters, including 80 percent of Republicans want insurers to be banned from refusing to insure people with pre-existing conditions. Beyond that, 71 percent of voters—and 66 percent of Republicans—say insurers should not be allowed to charge more to people with pre-existing conditions.
That matters because right now the Senate is considering the nomination of Brett Kavanaugh to the Supreme Court. O'Connor has given every indication he's going to rule against the law, and an appeal would be heard by the hostile Fifth Circuit, arguably the country's most conservative federal appellate court. That sets the case up to go to the Supreme Court. So at that point, senators Lisa Murkowski and Susan Collins may have a great deal to answer for—if they vote to confirm Cavanaugh.