Two former federal leaders from North Dakota are again asking Attorney General Wayne Stenehjem to withdraw North Dakota from a lawsuit aimed at repealing the Affordable Care Act.

Former U.S. Rep. Earl Pomeroy, D-N.D., and former Deputy Secretary of Health and Human Services Mary Wakefield want Stenehjem to withdraw the state from a 2018 Texas lawsuit that would repeal the ACA. Pomeroy and Wakefield say repealing the ACA would cost thousands of North Dakotans their health care coverage in the middle of a pandemic.

Pomeroy and Wakefield also brought up concerns with the lawsuit in 2018.

Former Deputy Secretary of Health and Human Services Mary Wakefield. (Submitted photo)
Former Deputy Secretary of Health and Human Services Mary Wakefield. (Submitted photo)

The fate of the ACA, passed in 2010 under the Obama administration, is again up in the air following the September death of Supreme Court Justice Ruth Bader Ginsburg. The Supreme Court is set to hear the lawsuit on Nov. 10, but whether Ginsburg’s replacement will be on the court at that time and would vote to overturn the law remains to be seen.

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This is the third time the ACA will come before the court.

Pomeroy, who voted in favor of the ACA when he was in the U.S. House, believes the case is “weak” but the new composition of the court and the potential addition of new justice puts the case “in an entirely different light.”

“I don't believe the Affordable Care Act has been ever more exposed,” he said during a virtual press conference Oct. 9. And since the issue arises in the midst of a national pandemic, Pomeroy said the timing couldn't be worse.

The Senate is to begin confirmation hearings for President Donald Trump’s appointee, Amy Coney Barrett, on Monday, Oct. 12.

North Dakota Attorney General Wayne Stenehjem. (Forum News Service file photo)
North Dakota Attorney General Wayne Stenehjem. (Forum News Service file photo)

“The U.S. Supreme Court has already ruled that the requirement that individuals purchase a product that they may not want violates the Commerce Clause of the U.S. Constitution," Stenehjem said in a responding statement. "The Act was saved because the Court held that Congress has greater powers due to its taxing powers. The ACA contained a tax penalty for those who do not purchase health insurance, and therefore, the law was upheld. Since then, however, Congress repealed the tax penalty. As a result, the remaining constitutional support for the law is now gone. The U.S. Supreme Court will hear the case next month. After four years, it is time this issue is settled.”

State Insurance Commissioner Jon Godfread, who oversees and regulates the implementation of the ACA in North Dakota, told Forum News Service last month that he believes the Affordable Care Act “hasn't really necessarily adjusted any of the problems in North Dakota.”

"What it has done, is it's placed a lot of burden on those small business owners — the farmers, the ranchers, the folks who don't have access to that large group market or the economies of scale,” Godfread said.

Jon Godfread, North Dakota's Insurance Commissioner
Jon Godfread, North Dakota's Insurance Commissioner

Since the lawsuit was filed in 2018, many legal observers have argued that the law is not likely to be reversed by the Supreme Court. However, should Barrett be named to the court prior to Nov. 10, it is possible the program may be struck down.

The ACA not only provides coverage for North Dakotans who can’t afford health insurance, but also helps the state’s hospitals, Wakefield said.

“If the ACA is thrown out, many of North Dakota’s hospitals will experience financial consequences heaped on top of the adverse impact the pandemic is having,” Wakefield said.

Wakefield, a Devils Lake native who graduated from the University of Mary in Bismarck and UND, served as acting deputy secretary of Health and Human Services from 2015 to 2017, and as head of the Health Resources and Services Administration from 2009 to 2015.

Wakefield said those who want to dismantle the ACA have had years to present a new, comprehensive plan but have yet to do so.

“If there were a good comprehensive fix to replace the ACA, or replacement that is as good as the ACA, or maybe even better, well, there have been years that have gone by, to produce such a plan and to share it,” she said. “But guess what. We still haven't seen that plan.”

In a joint statement with Stenehjem, Godfread contended that North Dakota has provided coverage for individuals with preexisting conditions through the Comprehensive Health Association of North Dakota (CHAND).

"CHAND has and will continue to remain operational and available to North Dakotans,” he said in the statement.

The CHAND high risk pool provides comprehensive coverage similar to the platinum level under the Affordable Care Act but with lower deductibles, according to the statement.