A Texas federal judge was inundated Thursday with friend-of-the-court briefs urging him to reject a lawsuit by Texas and 19 other red states asserting that the Affordable Care Act is unconstitutional.

As we’ve reported, the lawsuit would have the effect of invalidating the most popular and important provisions of the act, those protecting people with preexisting medical conditions from being refused insurance coverage. Texas and the other red states argue that by reducing to zero the penalty for not carrying insurance — that’s the “individual mandate” — Congress meant to invalidate the entire law. Credible legal scholars criticize the lawsuit as logically incoherent and “inane” in argument, to quote Nicholas Bagley of the University of Michigan.

Yet on June 8, the Trump administration threw its weight behind the lawsuit by refusing to defend the law in the Texas court. A coalition of 16 state attorneys general, including Xavier Becerra of California, will handle the defense instead.

The result would be devastating for the millions of Americans who...rely on those protections under current law to obtain life-saving health care. American Cancer Society, et al


At least 10 so-called amicus briefs were filed Thursday to a midnight deadline set by Federal Judge Reed O’Connor. They include briefs from 36 public health experts, 11 healthcare economists, law professors (including two associated with earlier legal attacks on the law), hospital organizations, health insurers, patient advocates, small business groups, and the American Medical Assn.

One earlier amicus brief stands out, however. It was filed back in May by a passel of hard-right organizations, including Gun Owners of America. That brief supports the Texas lawsuit, essentially by parroting the plaintiffs’ contentions.

More on that brief in a moment. First, let’s look at some of the arguments in Thursday’s pile-up.

The briefs filed by medical groups and healthcare experts focus on the consequences of invalidating the ACA’s preexisting condition rules or (as the Texas plaintiffs ask) in its entirety.


The brief from the American Cancer Society and advocates for sufferers from diabetes, cardiac and lung diseases, and multiple sclerosis says of invalidation of the patient protections, “the result would be devastating for the millions of Americans who … rely on those protections under current law to obtain life-saving health care.” Striking them down would be “catastrophic and have dire consequences for many patients with serious illnesses.”

The AMA asserts that the lawsuit would “strip health care from tens of millions of Americans who depend on the ACA; produce skyrocketing insurance costs; and sow chaos in the nation’s health care system.” The American Hospital Assn. and three other provider groups observe that the harms of repealing the ACA chiefly “would fall on the low-income families least able to cope with them.”

The health insurance industry points out that invalidating the law would wreak havoc on Medicaid, which plays an indispensable role in providing insurance under the ACA, and on enrollees in Medicare Part D, the prescription drug benefit, because the ACA reduced their exposure to out-of-pocket costs. Healthcare economists observe that judicial repeal would “relegate millions to facing the prospect of shorter, sicker, less productive lives” and “cause enormous disruption and uncertainty for the US health care industry, which constitutes about 20 percent of the US economy.”

These arguments might not carry much weight if the legal considerations fell strongly on the side of throwing the law out. In their brief, five legal scholars say the Texas lawsuit gets the key legal argument “exactly backward” and makes claims for Congress’ intent about the law that are at odds with what Congress says. Remarkably, this brief brings together legal scholars who have consistently supported the law, including Bagley and Abbe Gluck of Yale, with two who have consistently criticized it — including Jonathan Adler of Case Western Reserve law school, the architect of a lawsuit to overturn the law that made it all the way to the Supreme Court, which junked the case in 2015.


Congress plainly intended for the ACA and its protections for those with preexisting conditions to stand, they say. We know this because Congress left them alone when it reduced the penalty to zero last year.

The Gun Owners of America brief doesn’t address any of those arguments, much less the consequences of invalidating the ACA. It just repeats the Texas arguments. That leaves us to examine just who the group is, and what its real goal is.

You know who filed a single brief in favor of eliminating pre-existing conditions?



Citizens United, Downsize DC Foundation, Gun Owners of America, Inc., Conservative Legal Defense & Education Fund.



No offense to these groups, but they don’t have anyone’s health at heart. 5/ — Andy Slavitt (@ASlavitt) June 15, 2018

To begin with, Gun Owners of America is joined in the brief by eight right-wing and libertarian organizations. They include the Restoring Liberty Action Committee and Citizens United, which brought the lawsuit that led to a notorious 2010 Supreme Court decision throwing the campaign finance system wide open to abuse by corporations and the wealthy. Some of the groups have been backers or participants in several previous lawsuits aimed at overturning the ACA, all of which failed. So it’s not surprising to see them taking another crack at the law in this case.


Gun Owners of America isn’t the same as the National Rifle Assn., which generally wears the crown as the preeminent pro-gun organization in the country. If anything, Gun Owners is more extreme than the NRA. It thinks the NRA is given to pusillanimous compromises and proudly wears the label of “the only no-compromise gun lobby in Washington” bestowed on it by the former right-wing Rep. Ron Paul (R-Texas).

The organization was founded in 1975 by the ferociously pro-gun H.L. Richardson, who served for more than two decades in the California State Senate but never managed to win an election to Congress. That said, the organization has been successful via Washington lobbying in narrowing gun regulations at the national level.

You won’t find any arguments in the group’s brief explaining what the Affordable Care Act has to do with gun ownership or, for that matter, “restoring liberty,” unless it’s the liberty to fall ill or become injured and end up with no access to health coverage. They’re just against government regulation, period.

Andrew Slavitt, who oversaw Medicare and Medicaid during the Obama administration, may have said it best in a tweet Thursday: “No offense to these groups,” he wrote, “but they don’t have anyone’s health at heart.”


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