A federal judge on Wednesday pressed supporters of ObamaCare by asking skeptical questions during oral hearing arguments for a lawsuit that aims to overturn the 2010 health law.
Judge Reed O’Connor, who was appointed to the bench by former President George W. Bush, struck a more negative tone in his questioning of lawyers arguing in defense of ObamaCare, according to attorneys in the Fort Worth, Texas, courtroom.
The lawsuit against ObamaCare, spearheaded by Texas and 19 other GOP-led states, has become a centerpiece of Democratic arguments in the midterm elections, warning that Republicans want to invalidate protections for pre-existing conditions.
Legal experts, including many conservative ones, say the lawsuit is unlikely to ultimately succeed and is based on a far-fetched legal theory. They say even if the district judge rules to strike down ObamaCare, a higher court, perhaps eventually the Supreme Court, would likely uphold the law.
Texas and the other GOP-led states argue that ObamaCare’s individual mandate can now no longer be upheld as a tax since Congress eliminated the penalty for violating it as part of the 2017 tax law. The challengers argue that because the individual mandate is unconstitutional, the rest of ObamaCare should be struck down, too.
The Trump administration has agreed in part, saying the mandate and protections for people with pre-existing conditions should be struck down because those protections are inseparable from the mandate.
A focus of the arguments Wednesday was on the question of whether the mandate could be separated from the rest of the law, or whether other provisions must be struck down with it.
O’Connor expressed skepticism that the pre-existing condition protections could be separated, saying previous judges who examined the issue found those sections inseparable.
"Every single judge ... concluded this," O'Connor said, according to Politico.
Supporters of ObamaCare say it is clear Congress intended the health law to be capable of standing without a mandate, given that Congress itself eliminated the mandate but left the rest of the law standing in last year’s tax law.
But O’Connor suggested that the relevant law to look at is not the 2017 tax law but the original text of ObamaCare from 2010.
Democrats said the case should increase pressure on Judge Brett Kavanaugh’s nomination to the Supreme Court since the case could end up there.
“The extreme far-right judge in the ACA lawsuit was extremely hostile to the ACA in court today,” tweeted Topher Spiro, vice president for health policy at the liberal Center for American Progress. “He will likely strike down pre-existing condition protections. This could go to the Supreme Court.”