McFeely: N.D. Supreme Court needs to act now on Stenehjem lawsuit

State attorney general joined Texas suit to kill ACA, which would crush North Dakotans with pre-existing conditions.

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It remains a mystery why North Dakota attorney general Wayne Stenehjem joined a Texas-based lawsuit that would kill the Affordable Care Act. Maybe he thought it would cement his Republican bona fides. Maybe he thought that's what all the cool kids were doing. Maybe he was goaded into it over cocktails at a fundraiser. He's not talking much about it, so we don't know.

What we know is that Stenehjem's wilingness to enjoin North Dakotans in Texas et al vs. the United States of America, which seeks to declare the ACA unconstitutional, is endangering every resident of the Flickertail State that has a pre-existing condition.

That's probably somebody you know. Maybe it is a family member. It might even be you. Or worse, your spouse or child.

We also know this: With Stenehjem entangling North Dakota in the Texas lawsuit, it blows to pieces the campaign trail hot air that Republicans don't want to take away mandated insurance coverage for those who have a pre-existing condition. Last time I checked, Rep. Kevin Cramer wasn't speaking out against Stenehjem's sneak attack on the pre-existing condition mandate. In fact, the U.S. Senate-wannabe was trying to convince people he wants to protect health insurance coverage for those with diabetes or multiple sclerosis or who are pregnant. He's not being truthful.

The Texas lawyers pushing the lawsuit want to have a judge make a decision by Dec. 31. It could happen today. Or next week. If, as expected, the judge rules that the ACA is unconstitutional, those with pre-existing conditions will likely be without health insurance, or at least affordable health insurance, as soon as Jan. 1. Since North Dakota is a party to the lawsuit, that means North Dakotans would be bound by the judge's ruling.


North Dakota patient advocates, lawyers, doctors, Democratic politicians, media members and others have been pleading with Stenehjem to withdraw from the suit in an effort to protect North Dakotans. The attorney general has not been interested.

One group of people could go to bat for North Dakotans. That would be the North Dakota Supreme Court, which has before it a writ of mandamus -- basically, a lawsuit -- that could force Stenehjem to withdraw from the Texas suit. The writ was filed on behalf of North Dakota doctors like Eric Johnson of Grand Forks and Kimberly Krohn of Minot, and other petitioners like Anthony Arnold, Wyatt Eli, Krisanna Peterson and Jennifer Restemayer.

The petitioners either have a pre-existing condition or have a family member who does.

They would like to see the state Supreme Court take up the case now, not on the scheduled date of Nov. 26, because they believe time is of the essence. There is a good chance the Texas judge could rule before Nov. 26, making the writ a moot point and leaving North Dakotans like Arnold with no place to turn for health insurance.

The basis of the writ is that Stenehjem joined the Texas lawsuit illegally, that among other things he has no standing to allow two Texas lawyers to represent North Dakota in a federal lawsuit. But while that is the legal basis, the more important point is the human impact a ruling against the ACA could have on North Dakota residents.

Arnold, for example, was able to purchase health insurance for the first time in 2014 because of the ACA, according to court documents. The 41-year-old Grand Forks resident has cerebral palsy, communicates through an electronic device and needs an electric wheelchair to move around. Arnold says in court documents the "elimination of the Affordable Care Act would deprive people with pre-existing conditions of the opportunity to have medical devices which allow us to live with dignity and independence."

Other petitioners have similar stories of how the pre-existing condition mandate has allowed them to obtain or continue with affordable health insurance.

This goes beyond a political or ideological fight. Joining a Texas lawsuit might seem like a heroic move if you're hanging out in Texas or trying to impress your insurance industry buddies. In practice, it's bad for the people of North Dakota.


Stenehjem isn't interested in responding to questions about how he got North Dakota mixed up in the lawsuit, how he justifies the effects it might have on state residents or why he doesn't want to withdraw from it. It's up to the North Dakota Supreme Court to act, one way or another, as quickly as possible. Not for the sake of politics, but for the sake of the people.

Court members are apparently gathered in Grand Forks this weekend. They should take this up and not allow one more precious month to drain away until making a decision. They have three choices: deny the writ, make Stenehjem respond to it or order a hearing. The best course would be one of the last two. Find out why the North Dakota attorney general has, for no apparent reason other than politics, entered a Texas lawsuit.

Even if the decision is to deny the writ, let's get it on the public record. Let's see where the Supreme Court stands. The residents of North Dakota who have pre-existing conditions deserve that much.

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