Uncertain fate of ACA and 2017 rules creating exemptions to contraceptive coverage

In a 2-1 decision on December 18, 2019, the U.S. Court of Appeals for the 5th Circuit declared the Affordable Care Act's (ACA) individual health insurance mandate unconstitutional as a result of Congress's elimination of the financial penalty in the Tax Cuts and Jobs Act of 2017 (TCJA). However, the court declined to invalidate the ACA in its entirety and sent the case back to the district court to decide the issue. On January 21, the U.S. Supreme Court declined to grant an expedited review of the 5th Circuit's decision in Texas v. United States, so the case remains with the district court.

Separately, the Supreme Court has agreed to review Trump v. Pennsylvania, a case that challenged the Trump administration's 2017 rules creating new exemptions from the ACA's mandate on contraceptive coverage for employers that are affiliated with a religion or have sincere moral or religious objections to providing contraceptive benefits to their employees.

Background

In 2012, the U.S. Supreme Court upheld the constitutionality of the ACA in NFIB v. Sebelius on the narrow grounds that the individual mandate was a legitimate exercise of Congress's taxing power. The individual mandate was structured as a tax that would apply to taxpayers who failed to obtain health insurance. Immediately after Congress eliminated the individual mandate penalty in the TCJA, Republican state attorneys general (AGs), governors of 20 states, and two individuals in Texas sued to enjoin, or halt, the enforcement of the ACA.