Insurers feast on uncertainty the way most of us attack a holiday spread. They can relish risk because they know it can mean higher premiums and profits for their dealing with clients’ risks. This is one point to keep in mind while reading the abundant coverage of the latest step in Republicans’ decade-long assault on the Affordable Care Act, aka Obamacare.
A federal appeals court has struck down the zero-penalty piece of Obamacare, what many call a key part of the ACA (which, effectively, didn’t exist anyway). The judges also sent back this ACA challenge to their extremist colleague in Texas to parse which parts of Obamacare he thinks can stand up now that the sweeping health care law no longer has its “unconstitutional” individual mandate — the legal requirement that Americans must carry health insurance.
In response to a lawsuit filed against the ACA by 20 Republican attorneys general — and supported by the flip-flopping Trump Administration through the Justice Department — “U.S. Judge Reed O’Connor of the Federal District Court in Fort Worth struck down the entire law [almost a year ago], saying the individual mandate could not be severed from the rest of the Affordable Care Act because it was ‘the keystone’ of the law, essential to its regulation of the health insurance market,” the New York Times reported.
Two of three judges on the U.S. Court of Appeals for the Fifth Circuit agreed with O’Connor. The prevailing judicial duo, Republican appointees, told him he failed to explain sufficiently which parts of the ACA worked, legally speaking, without the mandate. They said he needed to detail and defend the “severability” of each part of Obamacare.
The third judge, a Democratic appointee, saw the case in far different fashion, more in line with 16 Democratic attorneys general defending the ACA after the administration declined to do so.
Without getting too deep into the details, let’s make it simple: The judges, expert analysts agree, should not be in the business of crafting public policy but rather interpreting the law. As the dissenting appellate judge noted, Congress has dealt with whether Obamacare should be the law of the land — scores of times, in votes forced by GOP lawmakers. It is the law because it has stood up to these myriad tests. In President Trump’s first year in office, with Republicans in control of the House, Senate, and White House, the GOP conducted zero public hearings and plunged through a costly and failed campaign to repeal the ACA.
Later, with the political deck stacked in their favor, the GOP took another swing at Obamacare, with Republican lawmakers winning a vote on a giant tax bill to zero out the penalty for Americans who go without health insurance. As Republicans and Democrats made clear when they took this action, they left the rest of the ACA untouched — by this time the GOP was whipped in its Obamacare repeal fervor.
So, as the dissenting judge rightly asked: What’s the deal? If the individual mandate is the constitutional linchpin by which Judge O’Connor wants to dismantle the whole ACA, why — because it has zero penalty and effectively does not exist? The U.S. Supreme Court in 2012 upheld the ACA, saying the individual mandate functions within Congress’ powers like a tax, so Americans were not being unconstitutionally coerced to buy health coverage. But now, a zero-dollar penalty even more so cannot compel Americans to buy health insurance through ACA exchanges, aimed at providing desperately needed, affordable health coverage to millions of working- and middle-class Americans, right?
Legal scholars also say they are confounded by the reach by O’Connor — and potentially the appellate judges — to toss out the hundreds of pages of ACA-affected aspects of health care, all due to the striking down of the nonexistent individual mandate. If Congress meant for the sweeping ACA to fall, it could have done that by voting, again, which lawmakers did relentlessly. Plus, if this was the congressional intent, which the judiciary must respect, why did lawmakers zing just the individual mandate and leave the rest of the ACA when they acted?
Now constitutional law might be fascinating to some. But for most of us, especially during the hectic holidays, the to and fro about the ACA might be frustrating, at best. Why care?
Just to remind: If the president and his party succeed at upending the ACA, they lack a plan for what happens next. No matter what they say. Tens of millions of Americans might find themselves suddenly without health coverage. Further, with the costs of health insurance soaring for companies, too, it is unclear how many corporations would keep paying for ACA-required elements for their employees.
What happens when insurers no longer are barred from discriminating against patients with preexisting conditions, an estimated 50 million of us? Who will keep insurers honest in deciding, too, exactly what are disqualifying preexisting conditions — is it athlete’s foot, allergies, or a once-twisted ankle (all reasons given to people I know when they were declined for coverage in the bad old days)? Who also will keep insurers from cutting off benefits and not imposing lifetime limits? Who says that insurers — or companies — will let parents keep their kids on their policies until age 26?
Not only would killing the ACA create chaos for those insured by their employers or by buying policies on Obamacare exchanges, as millions of lower- and middle-class Americans have, what happens to the poor, the working poor, the chronically ill (physically and mentally), the elderly, and children who have benefited from the act’s expansion of Medicaid in 37 states and the District of Columbia? With the nation savaged still by the opioid crisis and significant abuse of other drugs, how will millions with addiction and drug-related health problems get help if the ACA-expanded Medicaid program gets wiped out by one Texas jurist?
There’s more still, of course, to Obamacare, including quality, safety, and effectiveness programs affecting hospital care. There’s funding in the ACA to increase the supply of doctors, nurses, therapists, dentists, and community health centers. The act even affects how we eat, with requirements for restaurants to post calorie counts.
Republicans complained back when they and Democrats spent a year arguing about the act that it was too big and long for easy comprehension. It has been around for a decade — and Americans in political polling now have embraced the ACA, even as Democratic presidential candidates debate how to go even further to improve health care and involve the federal government deeper in the system.
Congress, meantime, has just axed unpopular taxes that were meant to help pay for Obamacare, including “the Cadillac tax”) for high-priced health coverage. Medical device makers also got Congress to swack planned charges on their devices. This all occurred as part of the galloping and sweeping budget process.
So, what happens next? The federal judge likely will take time to reconsider the case, likely alleviating the situation where courts rule on the ACA in the middle of the presidential campaign. The Democratic attorneys generals say they will take a long-shot plea to try to get the Supreme Court to intervene in the case, a step the justices by tradition may be disinclined to take because the matter has not undergone full consideration in courts below.
That leaves the act, however, in limbo. Uncertainty prevails. That does not benefit patients, their families, and employers, much less the health care enterprises that need to make billions of dollars in decisions based on public policies that may carry high risk. It may allow insurers yet more profit making on health coverage.
In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent medical care. This has become an ordeal to the spiking cost, complexity, and uncertainty of therapies and prescription medications, too many of which prove to be dangerous drugs. To deal with the staggering expense of medical treatment, health insurance has become a key. It is not, however, the alpha and omega of health care.
Indeed, though the ACA has changed and saved lives (see chart above as to how it covered millions more), it has become an unhealthy obsession, notably for the GOP. Republicans, in particular, have attacked the shared responsibility and government intervention in health care with jaw-dropping zeal. This has fueled the partisan divisiveness that threatens the function of our democracy.
Obamacare is imperfect, and it needs revision and greater support. But its achievements have been many and difficult to ignore, particularly how it has advanced the notion that health care in the richest nation on the planet needs to be a right, not a privilege.
If the ACA needs to be changed, or undone, this may be worth yet more discussion — but in public, in ways that long have defined how we act, with civility, openness, and transparency, as Americans. We cannot allow lawmakers to fiddle with something as crucial as our health and health care, in pell-mell fashion, without hearings, expert testimony, and discussion. We can’t see Congress grid-locked but acting only to keep the nation going by passing a budget — chock-a-block with changes to the ACA, or, yes, positives, too, like funding, finally, for public health research on gun violence.
It also, in my view, ill serves the country for one district judge, three appellate jurists, or even the justices of the highest court of the land to tackle the immensity of the U.S. health care system as it is touched in so many ways by the ACA. Partisans need to make their case best for their views and approaches, in our democracy, in the legislative area. Health care policy is complex and involves tough, tough tradeoffs. We help each other in mechanisms like health insurance so we are not crushed individually with medical debt or even the gloom of medical bankruptcy. Still, as wealthy as this nation is, it cannot afford unlimited treatment and prescription drugs for everyone. We all give a little, get a little, lose some, and take some. This builds our democracy and our faith and trust in each other. We may need, as one bruising decade closes and we launch into a new one, to think hard about how much collective hard work we need to pitch in to, so we all stay healthy and secure in the days ahead.