Topeka Kansas Attorney General Derek Schmidt has joined another multistate lawsuit seeking to declare a major portion of the Affordable Care Act unconstitutional, but his action is drawing the ire of health care advocates who say it's part of a partisan effort to dismantle the law.
The suit, filed in federal district court in Fort Worth, Texas, challenges the so-called individual mandate in Obamacare, which says nearly all individuals must carry a minimum level of health coverage or pay a penalty.
Soon after the law was enacted in 2010, Schmidt joined in another multistate suit seeking to have that same mandate declared unconstitutional. Plaintiffs in that case argued that it exceeded Congress' powers under the Commerce Clause, which gives the federal government authority to regulate interstate commerce.
But in a 5-4 ruling in 2012, the U.S. Supreme Court rejected that argument, saying the penalty was permissible under Congress' taxing authority. Chief Justice John Roberts cast the deciding vote in that decision by joining the court's four more liberal justices.
However, as part of the sweeping federal tax changes passed in December, Congress repealed that penalty. Now, 20 state attorneys general, including 18 Republicans and two Democrats, are going back to federal court seeking once again to have the individual mandate declared unconstitutional.
“In 2012, the Supreme Court left the Obamacare mandate hanging by the thinnest of legal threads,” Schmidt said in a news release Tuesday. “We think Congress snipped that thread in the tax reform bill.”
Gov. Jeff Colyer said he supports the lawsuit as well.
“The legal and policy failures of Obamacare are well known, and I am pleased that Kansas is joining this new effort to expose them,” Colyer said in the same news release.
In Kansas, more than 132,000 people were able to buy health insurance through the Affordable Care Act's online marketplace during the 2017 open enrollment period, with 72 percent of those qualifying for financial assistance to pay those premiums, according to data from the Centers for Medicare and Medicaid Services.
Another 9,173 people who applied for insurance through the marketplace were determined to be eligible for Medicaid or the state Children's Health Insurance Program.
Sheldon Weisgrau, interim director of the Alliance for a Healthy Kansas, which advocates for expanding Medicaid under another provision of the Affordable Care Act, said he was disappointed by the lawsuit, arguing that the people trying to chip away at the federal law haven't offered any other plan to take its place.
"It's hard for me to believe they're serious about addressing problems in the health care system," he said in a phone interview.
Sean Gatewood, a lobbyist for the KanCare Advocates Network, another group that supports expanding Medicaid, called the lawsuit a waste of time and money.
"I just don't understand the point," he said in a phone interview. "The individual mandate basically went away because there is no penalty."
The lawsuit also drew the attention of national advocates, including Protect Our Care, a group based in Washington, D.C., that has been fighting attempts in Congress to repeal Obamacare.
“This vengeful lawsuit is yet another partisan attack on health care that threatens Kansans’ care," Brad Woodhouse, that group's campaign director, said in a news release. "But Kansans are saying loud and clear: Enough is enough. It’s time for President Trump and Derek Schmidt to move on from their war on our health care.”