On Health Matters, Cities Increasingly Go to Court

Cities used to stay out of courtroom battles over health. Not anymore. Their new Obamacare lawsuit represents a growing strategy.
by | August 8, 2018
Baltimore Mayor Catherine Pugh appears on MSNBC to discuss her city's lawsuit over the Affordable Care Act. (MSNBC)

Cities used to stay out of courtroom battles over health, leaving that role predominantly to state governments. In the 1990s, states sued the tobacco industry and won more than $200 billion for the damages it had done to public health. States have filed lawsuits against and in defense of the Affordable Care Act (ACA).

But in recent years, more and more cities have been going to court.

Last week, four cities -- Baltimore, Chicago, Cincinnati and Columbus, Ohio -- sued the Trump administration over its handling of the ACA, President Obama's signature legislation. Seemingly every week, a new local government sues pharmaceutical companies for their role in the opioid crisis. Earlier this year, Baltimore sued the Trump administration for abruptly ending the Teen Pregnancy Prevention Program. A court ruled in the city's favor.

Why are cities stepping up their legal game?

For one, "issues impacting these cities are of higher prominence in the national discourse," says Geoffrey Mwaungulu, senior program analyst of public health preparedness, law and ethics at the National Association of City and County Health Officials.

For some cities, it's because they lack their state's support.

"Our attorney general wasn’t aligned in what we wanted to file suit on," says Zach Klein, Columbus' city attorney.

Cities tend to lean more liberal while state governments lean more conservative. Considering the partisan divide over the ACA -- and the fact that it's a midterm election year -- Republican state AGs may not be willing to join this cause. All four of the cities in the Obamacare suit are in states where Republicans, who have been less supportive of the law, control either the governorship or the attorney general's office.

In Baltimore, Mayor Catherine Pugh says the city decided to take legal action because Congress' recent elimination of the ACA's individual mandate, which required everyone to have health insurance, is taking a financial toll on the city.

“Our fire department answered 17,000 calls last year for people who were uninsured. That’s going to be a problem for our city. Somebody’s got to pay,” Pugh told The Baltimore Sun.

Baltimore and the three other cities allege that the federal government has intentionally worked to sabotage the ACA. Their lawsuit was filed in the same week that the White House finalized rules to loosen restrictions on short-term health plans that do not fully comply with the ACA.

"By cutting navigator funding, by cutting the open enrollment period by half, by promoting short-term junk plans, all of these actions run contrary to the federal law. When you partner that with [Trump's] words and tweets, you see there’s a premeditation to destroy the ACA," says Klein.

Trump was elected on a platform of repealing the ACA, commonly called Obamacare, and has made repeated efforts to undermine it. In court filings, the four cities suing the federal government are asking U.S. District Judge Deborah K. Chasanow to mandate the Trump administration to fullfill a "constitutional obligation to take care to faithfully execute the ACA."

The Trump administration has yet to respond to the suit.

Sometimes, cities are turning to lawsuits as a last-resort effort to maintain public health programs. If a judge hadn't ordered the Trump administration to restore the Teen Pregnancy Prevention grants that it cut, Baltimore Health Commissioner Leana Wen says the city would have had to spend more of its own money or cut funding in another area to keep its programs running.

"We [sued] because it was our only recourse. If it was a different administration, we could have worked with them, but we weren’t getting any response," she says. "We already run on a shoestring budget. That’s just an untenable situation."

Some cities don't have as many resources as their state to file a lawsuit. To make up for that, many of the cities with opioid cases are working with private law firms that will get a cut of the settlements they may receive.