Timing may be everything in life and the law: The U.S. Supreme Court — while giving the Trump Administration a small political break for now — may give the president’s fall reelection campaign plenty of upset still. Whether the court will give the country a health care disaster is another question.
The high court, acting on a request by Democratic state attorneys general, has agreed once more to consider the fate of the Affordable Care Act, aka Obamacare, on an expedited basis, even before a federal trial court and appellate judges finish their consideration of the latest legal challenge to the ACA.
This will be the third time the justices have taken up an ACA lawsuit, with this challenge representing not only another Republican attack on government-assisted health insurance for the poor, working poor, and middle class. This also may be a legal extreme for questioning Obamacare, as the New York Times reported:
“The case the justices will hear was brought by Republican state officials, who argued that when Congress in 2017 zeroed out the penalty for failing to obtain health insurance, lawmakers rendered the entire law unconstitutional. The Trump administration sided with the state officials, arguing that the rest of the health care law could not survive without a penalty for flouting the requirement that most Americans have health insurance, sometimes called the individual mandate. A Federal District Court judge in Texas agreed, ruling that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In December, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail. The Democratic states and the House, which intervened in the case to defend the health law, asked the Supreme Court to put its consideration of whether to hear the appeal on an unusually fast track. The court turned down that request in January. Having lost that fight, the states and the House asked the court to hear their appeal in the ordinary course. They said Supreme Court review was warranted because part of a federal law had been held to be unconstitutional, which is often reason enough for the justices to agree to hear a case. They added that the lower courts’ rulings had created doubt about the balance of the law.”
The administration and the GOP attorneys general wanted the high court to let the case work its way through the judiciary, with decisions to be made final, and then appealed to the high court — who knows when, and likely far after election season when voters will be watching health care developments with great care.
But the justices have stepped in, saying they will hear arguments in the case, likely this fall, with a decision potentially in the spring of 2021.
That will cause some heartburn for the Trump reelection effort, with the president’s administration and GOP officials arguing in the throes of the campaign about Republicans’ health care record, even as the partisan challenge could create a huge national mess, if the high court dooms the ACA. As Vox, the information web site, reported, based on experts’ research:
“The Urban Institute reviewed the likely consequences in grim detail: The number of uninsured people would increase by approximately 20 million, or 65% nationally, [and] the increases in un-insurance would be most heavily concentrated among people with the lowest incomes (below 200% of the federal poverty level), young adults, families with at least one full-time worker, and residents of the South and West. These subpopulations of the United States have experienced the largest gains in insurance coverage under the ACA and consequently would be hit the hardest if the law were repealed. States that expanded Medicaid would get the worst of it: Urban projected their uninsured rates would nearly double if the law were overturned. The uninsured rate for black Americans would increase from 11% today to 20% without Obamacare; there would also be a dramatic spike in un-insurance among Hispanics. And considering we know health insurance protects people financially and helps them live longer, we would expect that increases in the uninsured rate would mean more people going into debt over medical bills and, yes, people dying because they lack coverage.”
Let’s frame the issue another way: The president will be hard-pressed to make counterfactual assertions about his administration’s health care record while in the highest court in the land, Trump lawyers are trying to kill an increasingly popular landmark law that protects patients with preexisting conditions, lets parents keep their children on their policies until age 26, and bars insurers from imposing “lifetime limits” on needed benefits. These elements of the ACA have extended not only into policies sold on government-supported Obamacare exchanges but also into qualifying coverage employers provided by companies to their workers.
Americans slowly have embraced the ACA because of these benefits, plus the reduction in the uninsured and the rise in their health, especially due to Obamacare’s expansion of Medicaid. Voters have indicated they will respond with great unhappiness if they lose protections that they have become accustomed to and if, as has occurred due to administration policies and practices, the numbers of the uninsured spike anew.
The global coronavirus explosion has underscored, too, just how much the nation has come to rely on the ACA, as public health officials race to contain Covid-19, in part, by assuring Americans that they will not be saddled with high costs for their disease testing, at least. The administration has asserted this will be so because it plans to deem the screening an “essential health benefit.” That’s an ACA-related designation that forces insurers to cover it.
The high court’s latest ACA intervention leaves legal scholars, to an extent, scratching their heads — mostly as to how this case has been propelled by extreme views. The administration and congressional Republicans spent the first Trump year — when the GOP held the House, Senate, and White House — and failed to repeal Obamacare, this after congressional partisans tried scores of times to kill the ACA in votes.
The GOP turned to passing a whopping tax break for the wealthiest corporations and the richest plutocrats. In that $1-trillion-plus largess to the elite, lawmakers “reduced the penalty for a person not buying health insurance to zero,” as the Washington Post reported. GOP attorneys general have seized on that action to argue that “Congress had removed the essential tax element that the Supreme Court had found made the program constitutional” and a Texas federal judge invalidated the entire ACA, legislation that GOP lawmakers had attacked for running across more than 2,000 pages.
An appellate court also had problems with the individual mandate but ordered the lower court judge to reconsider each and every part of the ACA and whether these must fall.
The legal arguments in this case, as Vox noted, are dubious at best, for example, having the judge rewrite law for Congress, when lawmakers — as part of the tax cut — didn’t choose again to kill the ACA:
“Jonathan Adler, a conservative law professor — and a leading evangelist for an earlier lawsuit seeking to undercut the Affordable Care Act by reading a poorly drafted provision of the law to cut off much of the act’s funding — labeled many of the red states’ arguments ‘implausible,’ ‘hard to justify,’ and ‘surprisingly weak. The Wall Street Journal’s editorial board labeled this lawsuit the ‘Texas Obamacare Blunder.’ Yuval Levin, a prominent conservative policy wonk, wrote in National Review that the Texas lawsuit ‘doesn’t even merit being called silly. It’s ridiculous.’ … Some Republicans in Congress think the lawsuit is ridiculous, too. Sen. Lamar Alexander, the Republican chair of the Senate health committee, has criticized the Trump Justice Department for pursuing the litigation. Sen. Susan Collins of Maine, one of the key Republican swing votes on the Senate tax bill, says she did not think she was voting to overturn Obamacare entirely (and she had notably voted earlier the same year against the Republican repeal plans).”
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 due to the skyrocketing cost, complexity, and uncertainty of therapies and prescription medications, too many of which turn out to be dangerous drugs.
Republicans, of course, may feel free to keep up their almost religious campaign against any government role in U.S. health care, epitomized by their decade of assaults on the ACA. But partisans also should know this may cost them with voters, who have made health care a top 2020 political concern. Ordinary folks don’t give a whit about “severability,” “mandates,” “taxing powers,” or other focuses on policy wonks.
They want to know who will ensure they can pay their medical bills and avoid all-too-common medical bankruptcy. Health insurance isn’t the alpha and omega of medical security or certainty. But Americans, when sick or injured, don’t want to be made violently ill by surprise costs, dunning medical creditors, and outrages on and with their medical bills.
The justices may eventually find ways to dispose of yet another dubious GOP attack on the ACA. Republicans, however, may not so easily or quickly dispose of voters’ ire that the GOP not only wants to strip Americans of valued protections in the health care system but that partisans have, after a decade, no planned substitute or options. Voters, this go around, also may be unlikely to listen to false statements to the contrary.