On July 22, 2014, a divided three-judge panel of the DC Circuit ruled that people living in states with federally-created Health Care Exchanges under the Affordable Care Act are not eligible for subsidies to help them cover the cost of health insurance. On the same day, a different three-judge panel in the neighboring Fourth Circuit said everyone who is eligible for the subsidies can get them, no matter whether the state or federal government created the Exchange through which you happen to purchase your insurance.
If the D.C. Circuit decision in Halbig v. Burwell became the law of the land, it would threaten to place health insurance once again out of reach for the approximately 4.7 million families and individuals living in the 36 states where the federal government set up the Exchange. But all of us who care deeply about that outcome should resist the effort by those on the other side to create a sense of crisis, because panic plays directly into their strategy.
The lawyers orchestrating the challenge to the subsidies are urging the Supreme Court to take up the cases immediately to resolve the circuit split – and, conveniently, halt what is likely to be an avalanche of rulings against them in the lower courts. They urge the full D.C. Circuit not to rehear the Halbig case, because that would delay Supreme Court review and continue uncertainty about whether people who get insurance on federal Exchanges will be eligible for tax subsidies and whether those who have received the subsidies will have to repay them to the federal government.
