May 7, 2012
Women Sue Washington AG for Role in ACA Challenge
A group of Washington women filed suit last week in state court against Washington AG Rob McKenna for his role in the multi-state challenge to the federal Patient Protection and Affordable Care Act case now before the Supreme Court. The plaintiffs in Mackey v. McKenna seek declaratory and injunctive relief, in particular, a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate.
The plaintiffs claim that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place. Yet he joined the state in the multi-state suit against the entire ACA, allegedly capitulating to a majority of other state-plaintiffs, which voted to argue that the individual mandate was not severable, ensuring that the entire ACA would fall if the Supreme Court held the individual mandate unconstitutional. The plaintiffs argue that McKenna's capitulation, and his failure to truthfully inform state citizens about the litigation, violated his professional duties to Washingtonians.
The plaintiffs argue that they stand to lose vital protections in the ACA related to women's health--access to preventive care, the elimination of a lifetime cap on benefits, expanded insurance coverage, and access to birth control--if the entire Act is overturned.
The plaintiffs argue that Washington law allows taxpayer standing, but they do not address the other obvious problems that (1) full relief--a corrective pleading by McKenna and declaration that he violated state professional responsibility standards--will have no effect on the case at the Supreme Court (because the Court can already treat the individual mandate as severable, or not) and (2) the Supreme Court will rule before the state court case runs its course.
But this case is less about getting full relief in the form of a corrective pleading and more about holding McKenna accountable for his judgments and performance as the state's lawyer. If Professor Robert Aronson (U. Washington) is right in his supporting affidavit (attached at the end of the complaint), McKenna's acts are a clear violation of his professional ethical duties to the state.
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