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  Health Care - Legal News


A more conservative Supreme Court appears unwilling to do what Republicans have long desired: kill off the Affordable Care Act, including its key protections for pre-existing health conditions and subsidized insurance premiums that affect tens of millions of Americans.

Meeting remotely a week after the election  and in the midst of a pandemic that has closed their majestic courtroom, the justices on Tuesday took on the latest Republican challenge to the Obama-era health care law, with three appointees of President Donald Trump, an avowed foe of the law, among them.

But at least one of those Trump appointees, Justice Brett Kavanaugh, seemed likely to vote to leave the bulk of the law intact, even if he were to find the law’s now-toothless mandate that everyone obtain health insurance to be unconstitutional.

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Kavanaugh said.

Chief Justice John Roberts, who wrote two earlier opinions preserving the law, stated similar views, and the court’s three liberal justices are almost certain to vote to uphold the law in its entirety. That presumably would form a majority by joining a decision to cut away only the mandate, which now has no financial penalty attached to it. Congress zeroed out the penalty in 2017, but left the rest of the law untouched.

“I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that’s not our job,” Roberts said.

In the court’s third major case over the 10-year-old law, popularly known as “Obamacare,” Republican attorneys general in 18 states and the administration want the entire law to be struck down. That would threaten coverage for more than 23 million people, as well as millions of others with preexisting conditions that now would include COVID-19.

California, leading a group of Democratic-controlled states, and the Democratic-controlled U.S. House of Representatives are urging the court to leave the law in place.

The Supreme Court could have heard the case before the election, but set arguments for a week after. The timing could add a wrinkle to the case since President-elect Joe Biden strongly supports the health care law.


A week after the 2020 election, Republican elected officials and the Trump administration are advancing their latest arguments to get rid of the Affordable Care Act, a long-held GOP goal that has repeatedly failed in Congress and the courts. In arguments scheduled for Tuesday, the Supreme Court will hear its third major fight over the 10-year-old law, popularly known as “Obamacare.” Republican attorneys general in 18 states and the administration want the whole law to be struck down, which would threaten coverage for more than 23 million people.

It would wipe away protections for people with preexisting medical conditions, subsidized insurance premiums that make coverage affordable for millions of Americans and an expansion of the Medicaid program that is available to low-income people in most states. California is leading a group of Democratic-controlled states that is urging the court to leave the law in place.

The case comes to a court that now has three justices appointed by President Donald Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett,  who joined the court late last month following her hurried nomination and confirmation to replace the late Justice Ruth Bader Ginsburg. The three Trump appointees have never ruled on the substance of the health care law. Barrett, though, has been critical of the court’s earlier major health care decisions sustaining the law, both written by Chief Justice John Roberts.

The Supreme Court could have heard the case before the election, but set arguments for a week after. The timing could add a wrinkle to the case since President-elect Joe Biden strongly supports the health care law.

The case turns on a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not having health insurance to zero. Without the penalty, the law’s mandate to have health insurance is unconstitutional, the GOP-led states argue.

If the mandate goes, they say, the rest of the law should go with it because the mandate was central to the law’s passage. But enrollment in the law’s insurance markets stayed relatively stable at more than 11 million people, even after the effective date of the penalty’s elimination in 2019. According to the nonpartisan Kaiser Family Foundation, enrollment dropped by about 300,000 people from 2018 to 2019. Kaiser estimates 11.4 million people have coverage this year.

Another 12 million people have coverage through the law’s Medicaid expansion. The legal argument could well turn on the legal doctrine of severability, the idea that the court can excise a problematic provision from a law and allow the rest of it to remain in force. The justices have done just that in other rulings in recent years.

But in the first big ACA case in 2012, Justices Samuel Alito and Clarence Thomas voted to strike down the whole law. Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor have voted to uphold it. A limited ruling would have little real-world consequences. The case could also be rendered irrelevant if the new Congress were to restore a modest penalty for not buying health insurance. A decision is expected by late spring.



Until six weeks ago, defenders of the Affordable Care Act could take comfort in some simple math. Five Supreme Court justices who had twice preserved the Obama-era health care law remained on the bench and seemed unlikely votes to dismantle it.

But Justice Ruth Bader Ginsburg’s death in mid-September and her replacement by Amy Coney Barrett barely a month later have altered the equation as the court prepares to hear arguments Tuesday in the third major legal challenge in the law’s 10-year existence.

Republican attorneys general in 18 states, backed by the Trump administratio n, are arguing that the whole law should be struck down because of a change made by the Republican-controlled Congress in 2017 that reduced the penalty for not having health insurance to zero.

A court ruling invalidating the entire law would threaten coverage for more than 23 million people. It would wipe away protections for people with preexisting medical conditions, subsidized insurance premiums that make coverage affordable for millions of Americans and an expansion of the Medicaid program that is available to low-income people in most states.

“No portion of the ACA is severable from the mandate,” Texas Attorney General Ken Paxton told the court in a written filing. The Republicans are pressing this position even though congressional efforts to repeal the entire law have failed, including in July 2017 when then-Arizona Sen. John McCain delivered a dramatic thumbs-down vote to a repeal effort by fellow Republicans.

Barrett is one of three appointees of President Donald Trump who will be weighing the latest legal attack on the law popularly known as “Obamacare.” Justices Neil Gorsuch and Brett Kavanaugh are the others. It’s their first time hearing a major case over the health law as justices, although Kavanaugh took part in the the first round of suits over it when he was a federal appeals court judge.

Of the other justices, Chief Justice John Roberts and Justices Stepehen Breyer, Elena Kagan and Sonia Sotomayor have voted to uphold the law. Justices Samuel Alito and Clarence Thomas have voted for strike it all down.

The case is being argued at an unusual moment, a week after the presidential election, with Democrat Joe Biden on the cusp of winning the White House. Control of the Senate also is hanging in the balance.

The political environment aside, the practical effects of the repeal of the tax penalty have surprised many health care policy experts. They predicted that getting rid of the penalty would lead over time to several million people dropping coverage, mostly healthier enrollees, and as a result, premiums for the law’s subsidized private insurance would rise because remaining customers would tend to be in poorer health.


To hear Democrats tell it, a Supreme Court with President Donald Trump’s nominee Amy Coney Barrett could quickly get rid of the law that gives more than 20 million Americans health insurance coverage. But that’s not the inevitable outcome of a challenge the court will hear Nov. 10, just one week after the election.

Yes, the Trump administration is asking the high court to throw out the Obama-era healthcare law, and if she is confirmed quickly Barrett could be on the Supreme Court when the court hears the case.

But even if the justices agree that the law’s mandate to buy health insurance is unconstitutional because Congress repealed the penalties for not complying, they could still leave the rest of the law alone. That would be consistent with other rulings in which the court excised a problematic provision from a law that was otherwise allowed to remain in force.

Democratic lawmakers, however, sounded alarm bells Monday, the start of four days of hearings before the Senate Judiciary Committee for Barrett.

The party’s vice presidential nominee, Sen. Kamala Harris, who sits on the committee, said Republicans are “trying to get a justice onto the Court in time to ensure they can strip away the protections of the Affordable Care Act.”

“If they succeed, it will result in millions of people losing access to health care at the worst possible time: in the middle of a pandemic,” the California senator said.

Sen. Dianne Feinstein, California’s other senator and the committee’s senior Democrat, said, “Health care coverage for millions of Americans is at stake with this nomination.” And Sen. Sheldon Whitehouse of Rhode Island called Barrett’s nomination a “judicial torpedo aimed” at Affordable Care Act protections, including for preexisting health conditions. Other Democrats on the panel made similar points.

Democrats also repeatedly brought up words Barrett wrote in 2017, when she was a law professor, criticizing Chief Justice John Roberts’ 2012 opinion saving the Affordable Care Act. Barrett wrote that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

After that 5-4 ruling, which split the court along ideological lines, the justices rejected a second major challenge to the healthcare law by a vote of 6-3 in 2015.

The case before the court this year stems from Congress’ decision in 2017 to eliminate the law’s unpopular fines for not having health insurance. Despite repealing the fines, lawmakers left in place the law’s requirement that virtually all Americans have coverage. Texas and other conservative-led states argue that the change makes the requirement unconstitutional and also dooms the rest of the law because the mandate was so central to it.

But the court could simply “sever” the mandate from the law and leave the rest of the law alone. Many observers see that as a likely outcome and note the upheaval that would result across the American healthcare system if the law were to be struck down in its entirety.

Before the Supreme Court’s term began in October, Paul Clement, who argued in the 2012 Affordable Care Act case, said he wasn’t sure that the addition of a new justice would change the outcome of the case. He suggested that it is unlikely that the whole statute will fall.


The state Health Department’s effort to shut down a large auto show in central Pennsylvania over claims it represents a risk to the public will be the subject of an emergency hearing, a state court said late Wednesday.

The order from Commonwealth Court scheduled a Thursday morning hearing at the judicial center in Harrisburg, with social distancing rules because of the pandemic.

The unsigned order also declined to immediately shut down Spring Carlisle over the state’s claim the event runs afoul of a 250-person limit for gatherings in Cumberland County.

Attendees streamed into the fairgrounds Wednesday, the first day of the event put on by defendant Carlisle Productions Inc., also known as Carlisle Events. It is scheduled to run through Saturday.

Business closures and social distancing have saved lives, lawyers for the Health Department said.

“When individuals choose to ignore those safeguards — such as by holding an event anticipating 100,000 attendees — they put the lives of Pennsylvanians at risk and threaten to reverse the significant progress that has been made to resolve this crisis. That dangerous conduct must be stopped before it can occur,” they told the court.

Carlisle Events has held the spring auto show at the Carlisle Fairgrounds since 1976. It typically draws about 100,000 people, although organizers say they expect a smaller crowd for this year’s event.


In a move that could put the Obama-era health law squarely in the middle of the 2020 election, Democratic-led states Friday asked the Supreme Court for a fast-track review of a recent appeals court decision declaring a key part of the law unconstitutional and casting a cloud over the rest.

A coalition of 20 states filed a petition seeking expedited review, according to the office of California Attorney General Xavier Becerra. They hope to get a Supreme Court hearing and decision by this summer, before the November elections. For the court to agree to such a timetable would be unusual, but not unprecedented.

Defenders of the Affordable Care Act are arguing that the issues raised by the case are too important to let the litigation drag on for months or years in lower courts, and that the 5th U.S. Circuit Court of Appeals in New Orleans erred when it struck down the health law's now toothless requirement that Americans have health insurance.

The 5th Circuit's 2-1 decision left the health law in effect for now. Open enrollment season for 2020 has been able to proceed without any disruption.




The U.S. Supreme Court on Monday left a lower court ruling in place that struck down a law making it a crime to sleep in public places when homeless shelter space is unavailable.

A federal appeals court had ruled that the anti-camping ordinance in Boise, Idaho, was cruel and unusual punishment, violating the Constitution's Eighth Amendment. "A state may not criminalize conduct that is an unavoidable consequence of being homeless," the appeals court said.

The Supreme Court denied Boise's appeal Monday without comment, as is its normal practice when declining to grant reviews.

Lawyers for the city argued that Boise wanted to enforce the ordinance "in the parks, foothills, and other public areas not just to keep them safe and sanitary but also to allow users to utilize the public spaces as they were intended to be used." Supporters of the law said people sleeping on the streets are unsafe and make residents feel less safe.


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