A doctor sits at her desk and listens to a patient . She is wearing blue scrubs and stethoscope and is sitting at her desk . In the background shelving containing sharps box, gloves and medicine can be seen.

Right now, a lawsuit is making its way through the federal courts in Texas that may determine the future of our entire health care system – and shockingly few people know about it.

A group of states led by Texas filed a lawsuit in a Texas federal court that is known as a testing ground for extremist legal theories. Their goal? To achieve through the courts what Congress refused to do: dismantle the entirety of the Affordable Care Act (ACA).

In December, the federal court sided with Texas in a dangerous and legally flawed decision declaring the ACA invalid. And just last week, the Trump-Pence administration announced that it agrees the entire law should be struck down and that it won’t defend any of the ACA in court. This is outrageous – and completely and shamelessly ignores the millions of us whose health and lives are at stake and who have protested these attacks on our health care.

But the fight isn’t over. A group of states led by California, as well as the newly composed U.S. House of Representatives, stepped in to defend the ACA, and the case is now pending before the U.S. Court of Appeals for the Fifth Circuit. This week the National Women’s Law Center – along with the National Partnership for Women and Families, the Black Women’s Health Imperative, and the American Medical Women’s Association and our counsel Goodwin Procter LLP – filed an amicus (“friend of the court”) brief explaining to the court just what is at stake for women and their families if the ACA is struck down.

How We Got Here

The ACA includes a provision that says individuals must obtain health insurance or pay a tax, the “individual responsibility provision.” In the 2012 Supreme Court case NFIB v. Sebelius, the Court – in an opinion by Chief Justice Roberts – upheld the individual responsibility provision as constitutional. A majority of the Court construed the payment for not having health insurance to be a tax and determined that the individual responsibility provision is a constitutional exercise of Congress’ power to tax. Since then, millions of people nationwide – especially women and critically, women of color – have obtained health coverage thanks to the ACA, resulting in improved health outcomes and economic security for women and their families.

Fast forward to 2017. Efforts in Congress to repeal the ACA – spurred on by the Trump-Pence Administration – failed (repeatedly), but as part of tax reform in December 2017, Congress reduced the tax for not having health insurance to zero. When Congress reduced the tax, lawmakers repeatedly clarified that they weren’t touching any other part of the ACA and were keeping its protections in place.

After failing to achieve ACA repeal in Congress, anti-ACA policymakers once again turned to the courts. The states led by Texas argue that because the tax for not having health insurance has been reduced to zero, it can no longer be considered an exercise of Congress’s taxing power and is unconstitutional. From that, they are arguing that the courts can and should throw out the entirety of the ACA along with it.

This legal reasoning is faulty and the lower court’s decision is nothing short of extreme judicial activism. First, Congress’s reduction of the tax amount to zero does not change the fact that it is constitutional, as the Supreme Court held in 2012. The individual responsibility provision doesn’t actually require anyone to do anything – it is nothing more than a choice to buy health insurance or pay a tax (and now that tax is nothing). Because it doesn’t require anything, it doesn’t need to be authorized by any particular enumerated power granted to Congress in the Constitution. But even if it did, it is still a valid exercise of Congress’s taxing power even though the tax amount is currently zero.

So, the individual responsibility provision is still constitutional. But even if it weren’t, when a court is deciding whether to strike down a law in its entirety after determining that a piece of it is unlawful, it must ask itself what Congress would have intended. Longstanding Supreme Court precedent requires courts to leave as much of a statute intact as possible if a piece of it is determined to be unconstitutional so as not to interfere with what Congress intended. And what is evidently clear is that Congress has repeatedly and deliberately kept the ACA intact. Not only has Congress rejected multiple attempts to repeal the ACA in the nine years since its enactment, it has taken other actions that depend on the ACA’s existence – even since zeroing out the tax in December 2017.

Even though the legal arguments in this case are weak, the Trump-Pence administration has seized on it to advance their harmful agenda, announcing last week that they support the states’ efforts to strike down the ACA in its entirety. Since this administration’s first day in office, its priorities have been clear: repeal the ACA to score political points. Since they haven’t been able to do it through Congress, now they’re trying to finish their insidious plan through the courts – without any regard for the millions who will lose their health coverage or even any plan for what would replace the ACA.

Why Texas and the Trump-Pence Administration Are Wrong – And Why the ACA Is Too Important to Women and Families to Lose

We’re using our legal strategies to fight back against this administration as it ruthlessly plays politics with our health care.

Our brief to the appeals court explains that when Congress passed the ACA, it specifically intended to end widespread, punitive practices by insurance companies that discriminated against women and families. And in 2017, when Congress lowered the tax for the individual responsibility provision, it had no intention of discarding those protections.

Before the ACA, insurance companies charged women more for health coverage that did not meet women’s health needs and treated being a woman as a pre-existing condition for which coverage could be denied altogether. Some insurance companies would deny coverage to a woman just for having been pregnant or having had a cesarean delivery, or for surviving domestic violence or sexual assault. And when women were able to get coverage, they found that it didn’t meet their needs, excluding coverage for essential services like maternity care and mental health care. As a result of these discriminatory practices, women and their children – and particularly women of color – often had to forgo essential medical care, and this lack of coverage threatened their health and financial stability.

The ACA does so much to combat this. It requires insurance coverage of birth control and other women’s preventive services with no out-of-pocket costs. It requires coverage of maternity, newborn, and mental health care as essential health benefits. It ensures women are not charged more for health insurance than men and protects people with pre-existing conditions. It expands Medicaid, provides tax credits to make insurance premiums more affordable, and eliminates lifetime and annual limits on health coverage – all of which disproportionately benefits women and their families. And it includes Section 1557 (the Health Care Rights Law) – the first broad federal protection against sex discrimination in health care.

All of this is at stake.

We’ll be watching this case closely, and we’ll never stop protecting and defending our health care.

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