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Here’s why experts say the judge in the ACA case went too far

Patrick Sison/Associated press/Associated Press

The Affordable Care Act has 10 distinct chapters in the law books, runs somewhere north of 900 pages (depending on type size) when printed, and has infiltrated nearly every aspect of the nation’s medical system in ways massive and minute.

Yet a federal judge in Texas has ruled that the Republican elimination of the tax penalty for the uninsured also invalidated the legal mandate that every adult American have health insurance. Based on just those two issues, Judge Reed O’Connor ruled the entire law is unconstitutional.

But Boston-area law professors who specialize in health care law and the intersection between health care and the US Constitution contend O’Connor’s vaporizing of the Affordable Care Act as a whole is the judicial equivalent of a doctor performing surgery on the wrong body part — it’s just not right.


“It’s a very strange decision. I cannot see how the rest of the statute rises and falls on whether that one provision survives,’’ said Mary Ann Chirba, a Boston College Law School professor and distinguished scholar in health care law. “He is taking away incentives for more discharge planning in hospitals. What does that have to do with an individual having insurance?”

Nicole Huberfeld, a professor of health law, ethics, and human rights at the Boston University School of Public Health, had her writings on health care cited with approval by the US Supreme Court in a decision O’Connor builds his legal house upon, a ruling called NFIB v. Sibelius.

Huberfeld said O’Connor was wrong to build an unbreakable bond between each and every section of the ACA. In fact, it is a “severable” statute — that is, if one portion of law is flawed that does not automatically mean other parts must fail, too, she said.

“The judge’s conclusion that the law is not ‘severable’ and thus the entire law must fail is not defensible,’’ she wrote in an e-mail to the Globe. “The claim was frivolous, and the decision is, too.”


Both experts said O’Connor overreached in his ruling, and also seemed to completely misunderstand court rulings he relied upon to support his belief that if one section is flawed, all of the law is flawed. The key case he cited, Chirba said, actually says the exact opposite of what O’Connor concluded.

Both experts faulted O’Connor for the timing of his ruling, which came during the ACA enrollment period, as millions of people were searching for health insurance.

“It will create more uncertainty in health care markets until the dispute is resolved,” Huberfeld wrote. “The decision will cause confusion for the public.’’

Both said they expected O’Connor’s ruling could make it to the US Supreme Court, where a majority has supported the law overall. But that court now has two appointees of President Trump, who made the dismantling of the ACA one of his top issues during the presidential campaign.

“It’s a more conservative court now because of the Trump appointees,’’ Lune said. “But I still don’t think they would invalidate the entire law.”

John R. Ellement can be reached at Follow him on Twitter @JREbosglobe.