In Narrow Ruling, Judge Deems “The Ultimate Conservative Plan” For Health Care Unconstitutional

This week, U.S. District Court Judge Henry Hudson in Virginia became the first judge in any courtroom to issue a ruling declaring part of the Affordable Care Act unconstitutional. Despite being preceded by two rulings in similar lawsuits that fully rejected the plaintiffs’ arguments and declared the entire law constitutional, and despite the dismissal of least a dozen other similar challenges out of a total of twenty-four nationwide, Judge Hudson’s decision (which was described by Professor Timothy Jost as “defective”) set off a media firestorm as opponents of the health care law happily fanned the flames.  

But the Virginia decision was neither unexpected nor as momentous as the media coverage may have suggested. As the White House noted in its official response the day of the ruling, opponents of Social Security, the Civil Rights Act, and the Voting Rights Act all took to court challenges very soon after the passage of each of those pieces of landmark legislation. It was little surprise that opponents seeking to overturn the health care law would go down a similar path. It was even less of a surprise that a jurist like Judge Hudson would issue a ruling favorable to opponents of the health care law, after refusing to either recuse himself from the case or divest from his financial interest in a partisan campaign consulting firm that counts the plaintiff, Virginia Attorney General Ken Cuccinelli, as a client.  

What was a surprise, according to many analysts, was the narrow scope of the decision. The language of the ruling appears to specifically apply only to Section 1501 of the Affordable Care Act, which mandates that Americans who do not buy health insurance eventually pay a tax penalty. The Wall Street Journal reported that “several legal experts on both sides of the case said they interpret the ruling as applying to the individual mandate and nothing else” - a result that was not inevitable, given the lack of a so-called “severability clause” in the text of the bill itself that would have explicitly protected the rest of the law if only one part of it were ruled unconstitutional. One reporter described the feeling among the health care advocate community in reaction to the language of the decision as “one of bitterness, but not dread.”

And while Judge Hudson’s decision is widely believed to be an “outlier,” the fact that it was focused so tightly on the individual mandate has raised hopes that even if the decision were to be upheld, it would not spell the death of the entire health care law. Instead, such an outcome may end up affecting only the individual mandate - a policy once championed by free-market ideologues and described by Former Massachusetts Governor Mitt Romney as “the ultimate conservative plan” for health care and for which the insurance industry itself has lobbied heavily.  The New York Times reported that “some lawmakers and consumer advocates are investigating possible alternatives” to the individual mandate in the wake of the decision, including other ways to create incentives for consumers to buy insurance before they get sick.

Despite the concerted attempt by opponents to derail the Affordable Care Act, progressive state legislators around the nation are steadily continuing the responsible work of implementing what is now the law. Iowa State Senator Jack Hatch, Chair of the Working Group of State Legislators for Health Reform, said that the lawmakers he is working with would be “redoubling their efforts to implement the law in order to ensure that Americans are protected from insurance company profiteering, that costs are lowered for families, and that our states’ health care systems are strengthened.” In addition, legislators and Governors-elect in states like Vermont and Connecticut are signaling that they are prepared to move forward even further on progressive health care solutions - possibly including single-payer or a public option. Thirty-three states have now taken legislative or executive action to implement the federal health care law. Even in Virginia itself, state officials are simultaneously preparing to implement the same law their Attorney General is so fervently seeking to overturn in court.