Montana Attorney General Tim Fox joined with the Ohio attorney general, both Republicans, to oppose a ruling by a federal judge in Texas that struck down the Affordable Care Act last year.
The ACA, also known as Obamacare, is still in place as the case moves through the appeal process. The Texas judge in December found the ACA unconstitutional over the mandate that individuals had to purchase health insurance, and invalidated the whole thing because of that.
The provision that people carry health insurance, however, was essentially eliminated with the passage of the federal tax cuts bill in 2017 that reduced the penalty for not having coverage to $0.
In an brief filed Monday, Fox and Ohio Attorney General Dave Yost don't dispute the individual mandate is unconstitutional. They argue, however, it should be severed from the law and that the court is not required to strike down the entire ACA.
The move puts Fox and Yost at odds with President Donald Trump on the issue. The brief was filed after the U.S. Department of Justice, under Trump, notified the 5th Circuit Court of Appeals last week it would not seek to overturn the Texas judge's decision.
In an interview with Lee Newspapers on Monday, Fox said his concern is securing a provision of the ACA that ensures those with pre-existing health conditions can't be denied coverage.
"That put over 150,000 Montanans with pre-existing conditions in jeopardy of losing their coverage," Fox said of the U.S. DOJ's decision not to challenge the Texas ruling. "My primary focus is on preserving coverage for pre-existing conditions for Montanans. That's the primary reason for my involvement."
Fox is in his second term as attorney general and is running for governor in 2020. He said Monday that campaign had nothing to do with filing the brief.
The ACA has been, Fox said, "a train wreck and a nightmare since it was passed in the middle of the night so many years ago."
Still, he said Monday he does not want to see protections for those with pre-existing conditions fall because of a decision in Texas.
"The District Court's decision purports to invalidate the Affordable Care Act for the entire nation — from Big Bend country to Big Sky and Big Ten country," Fox and Yost wrote. "The court's decision, if affirmed, will deprive millions of non-elderly Ohioans and Montanans of coverage for pre-existing conditions. …Let justice be done, though the heavens may fall. But the District Court's ruling is wrong, and its errors threaten harm to millions of people in the Buckeye and Treasure states."
Fox called on Congress to fix the ACA, adding "the courts are a terrible place to formulate health care policy."
"It is important we preserve coverage for pre-existing conditions, and Congress should do its job and fix the Affordable Care Act."
Montana's Legislature is in the midst of a debate over how it will continue Medicaid expansion, a provision of the ACA. The state first passed expansion, which extends Medicaid coverage to those earning up to 138 percent of the federal poverty level, in 2015. A bill to continue the program with added work requirements passed the state House last week.
Another federal court invalidated work requirements in Arkansas and Kentucky the day after Montana's bill cleared a committee. If the U.S. Supreme Court were to strike down work requirements, the pending legislation here would have the program continue without that provision until 2025. Lawmakers would then again have to decide the program's future.
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