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Health Care Litigation and the Biden Administration

Health Care Litigation and the Biden Administration
  • Timothy S. Jost

    Emeritus Professor, Washington and Lee University School of Law

  • Timothy S. Jost

    Emeritus Professor, Washington and Lee University School of Law

  • On January 20, the new Biden administration will inherit multiple health care lawsuits, including challenges to the ACA

  • Many Trump administration rules or polices that the Biden administration wants to amend or rescind will require notice and comment rulemaking, which may take some time

When President-elect Joseph Biden takes office on January 20, he will inherit multiple ongoing health care lawsuits. One of these, California v. Texas, questions the validity of the Affordable Care Act (ACA) itself, but most challenge Trump administration policies that the Biden administration may attempt to reverse. This post will describe the current state of litigation involving health care coverage and actions the Biden administration can take.

In the Supreme Court

California v. Texas was argued before the Supreme Court on November 10, 2020. Two individuals and 18 Republican state attorneys general, led by Texas, claimed that the 2017 Tax Cuts and Jobs Act, which zeroed out the individual mandate tax, made the ACA’s individual mandate unconstitutional and that the entire ACA must be invalidated with it. California and the House of Representatives are defending the ACA; the United States Department of Justice has failed to do so.

The Supreme Court will decide the case in the spring or summer of 2021, but it was clear from the oral argument that the majority of the Court opposes invalidating the ACA. The Court may hold the mandate itself unconstitutional but will likely sever the rest of the statute and affirm its continuing validity. The Biden administration may notify the Court that it rejects the position of the Trump administration, but because the case has been fully briefed and argued, there is likely little else it can do to affect the Court’s decision.

The Supreme Court also will hear Azar v. Gresham and Azar v. Philbrick. These appeals challenge the D.C. Circuit Court’s ruling that waivers granted by the Trump administration to Arkansas and New Hampshire to impose Medicaid work requirements are arbitrary, capricious, and fail to consider the objectives of the Medicaid statute. The Biden administration will likely seek to terminate these and other Medicaid work requirement waivers, although it will have to follow certain procedures. In any event, the Supreme Court may nonetheless hear the case to define the scope of the Department of Health and Human Services’ Medicaid waiver authority.

Cases Challenging Trump Administration Policies

New York v. Department of Labor and Association for Community Affiliated Plans (ACAP) v. The Treasury Department challenge Trump regulations expanding types of insurance that undermine the ACA’s individual market consumer protections and risk pool.

The New York case challenges regulations expanding the marketing of association health plans, through which associations market health coverage to individuals and small groups free from ACA consumer protections. A federal court vacated those regulations in part. Nearly two years later, an appeal from this judgment has not been decided.

The ACAP case also challenges Trump administration regulations expanding the availability of short-term limited duration health plans, which are not regulated by the ACA. The D.C. Circuit Court of Appeals upheld the Trump regulations. A petition for review by the full circuit is pending. The Biden administration will likely want to revise both the association health plan and short-term plan regulations and request that proceedings in these cases be put on hold.

City of Columbus v. Trump challenges certain actions of the Trump administration affecting the ACA marketplaces and health insurance markets, such as cutting the length of the open enrollment program, support for navigators, or program outreach and advertising. Constitutional claims in this case were dismissed by the District Court but the Administrative Procedure Act claims remain. The Biden administration will likely amend the rules challenged in this case and settle.

Several cases are pending challenging both Obama- and Trump-era regulations implementing Section 1557, the ACA’s antidiscrimination provision. Franciscan Alliance v. Azar vacated the Obama administration’s 1557 rule protecting transgender individuals and is currently on appeal to the Fifth Circuit. Two district courts have enjoined the Trump administration rule eliminating protections for LGBTQ individuals after the government failed to account for a recent Supreme Court decision protecting LGBTQ people from discrimination based on sex under federal civil rights law. These decisions are also on appeal. It is likely the Biden administration will reinstitute protections for transgender individuals and consider other changes to the 1557 rule.

There is a tangle of cases related to abortion and contraception, including challenges to regulations implementing statutory freedom-of-conscience protections, limiting the availability of Title X family planning grants, requiring separate payment for abortion coverage through marketplace plans, and allowing organizations with religious or moral objections to refuse contraceptive coverage to their employees and students. The Supreme Court’s decision last term upholding religious or moral objections to contraceptive coverage did not fully resolve the legality of the Trump administration’s contraceptive regulations, and litigation continues. The Biden administration is likely to revise Trump rules to provide greater access to contraception and more protection for organizations that provide abortions, but these revisions will be challenged by antiabortion groups and litigation will continue.

Finally, cases are percolating through the courts challenging the Trump administration’s revisions to the public charge rule, which makes it more difficult for immigrants who receive Medicaid to receive a green card, visa, or admission into the United States, and to the presidential proclamation that requires immigrants in certain categories to have health insurance before entering the United States.

What Happens Next?

Many of the Trump administration rules or polices that the Biden administration wants to amend or rescind will require notice and comment rulemaking, which may take some time. The Biden administration can ask courts to hold proceedings in abeyance as it proceeds. In some cases, the Department of Justice may file pleadings explicitly changing its position before the court, as has happened in the past when there has been a change of administration.

Biden administration health care initiatives will certainly be challenged by conservative advocacy groups. But the focus of litigation will change after January 20.

Publication Details



Timothy S. Jost, “Health Care Litigation and the Biden Administration,” To the Point (blog), Commonwealth Fund, Jan. 19, 2021.