On Friday, December 14, U.S. District Judge Reed O’Connor ruled in Texas, et al v. United States, et al, that the Patient Protection and Affordable Care Act (ACA), or Obamacare, was unconstitutional.  The hysteria immediately began, with Senate Minority Leader Chuck Schumer (D-N.Y.) stating, “This is an awful ruling.  Of course, it undoes pre-existing conditions, jeopardizes the tens of millions who are getting good health care on the exchanges, but it goes way beyond that.  It would knock out funding for treatment of opioids.  It would raise drug prices … it is an awful, awful ruling and we are going to fight this tooth and nail.”  House Minority Leader, and presumed Speaker of the House for the 116th Congress, Nancy Pelosi (D-Calif) said, “While the district court’s absurd ruling will be immediately appealed, Republicans are fully responsible for this cruel decision and for the fear they have struck into millions of families across America who are now in danger of losing their health coverage.”

The judge’s ruling did not order Obamacare to stop functioning, so nothing will change as the lawsuit winds its way through the appeals courts, stopping next at the 5th U.S. Circuit Court of Appeals, and on up to the Supreme Court, which probably will not hear the case until at least year or more from now.  What it does do is provide an opportunity and the time to fix the damage Obamacare did to health insurance, especially for those that do not get insurance through their employer and must purchase it on their own.

While the howling will continue from those that voted for ACA that this is a horrible ruling, the fact is Obamacare did not live up to its promises and has devastated the individual insurance marketplace.  Premiums went up on average in the Federal Exchange by 105 percent and did not decrease on average by $2,500 per family, per year as promised by President Obama.  Choice and competition is limited in too many counties in the country, with 37 percent having only one insurer and 40 percent having only two insurers participating in the ACA marketplaces.

The lawsuit came about as a result of the passage of the major tax relief bill, the Tax Cuts and Jobs Act of 2017, which was signed into law on December 22, 2017.  In that bill, the ACA individual mandate was zeroed out.  Starting in 2019, people will not have to worry about being taxed for not purchasing health insurance.

Two months later, on February 26, 2018, the lawsuit was filed that challenged the constitutionally of Obamacare.  Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel led the case and attorneys general and governors from 18 other states (Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West Virginia) joined them, arguing that, “Following the enactment of the Tax Cuts and Jobs Act of 2017, the country is left with an individual mandate to buy health insurance that lacks any constitutional basis” and that “Once the heart of the ACA – the individual mandate – is declared unconstitutional, the remainder of the ACA must also fall.”

Instead of panicking about the ruling, Congress needs to take a serious look at the Healthcare Choices Plan, a proposal that has been crafted by Sens. Bill Cassidy (R-La.) and Lindsey Graham (R-S.C.).  It would be a superb vehicle to codify many of the beneficial changes being implemented by the Trump administration that are expanding choice, lowering costs, and moving regulatory authority back to the states and closer to the citizenry, where it belongs.  Some of these changes, implemented under agency guidance and regulations, are extending the use of short-term, limited-duration health plans, expanding the use of Association Health Plans, and working with the states to take full advantage of Section 1332 State Innovation Waivers.  This section of ACA allows states to design and implement programs that would fit their citizens’ needs.  Under the Obama administration, the waivers were greatly restricted.  TheTrump administration has interpreted the waivers more broadly and states are starting to use the 1332 waiver process to implement their nnovative plans.  Some are using the waivers and ACA funds to stabilize their individual health insurance market with robust risk pools and reinsurance, driving down premiums while protecting those with pre-existing conditions.

Most importantly, Congress should reject any attempts to pass Sen. Bernie Sander’s (I-Vt.), Medicare for All, that would bankrupt the country and force everyone into government-run health insurance where unelected Washington D.C. bureaucrats would run roughshod over medical decisions.