Tens of millions keep Obamacare as justices toss a GOP suit for a third time

scotusbldg-300x193It’s three strikes now from the U.S. Supreme Court: Have Republicans finally gotten themselves thrown out of their game to strip tens of millions of Americans of their health insurance?

The conservative-packed high court, in a 7-2 vote, rejected the latest and third GOP attempt to overturn the Affordable Care Act, which Republicans in Congress also have failed to kill in more than five dozen votes over more than a decade.

The case decided by the justices — supported by the Trump Administration and brought by attorneys general in Republican-controlled states like Texas and opposed by their counterparts in Democratic-controlled states — proved to be the legal equivalent of a belly flop.

The overpowering majority of the court found that the GOP states lacked even the standing to contest the law. The claimants suffered no harm and erred by zeroing in on a part of the ACA — the requirement that people prove they carried health insurance or face penalties at tax time — that Congress had taken off the books, the court majority ruled.

GOP legal extremists had wanted to boot-strap the now-nonexistent mandate into a reason to kill Obamacare entirely, arguing in head-scratching fashion about “severability,” the ability of other parts of a 2,000-page law to stand up without the mandate.

The court, notably Chief Justice John Roberts, had suggested in oral arguments in California v. Texas  that justices were growing weary of ACA foes trying to get the legal system to do what Republican politicians could not and kill the health insurance law — even though they have, for years and at different points in time, controlled the White House and both houses of Congress.

Political and statistical reality prevails

The news articles on the court’s ruling underscored the political realities that GOP lawyers have failed to grasp. As the New York Times reported:

“Obamacare enjoys higher-than-ever public support, with most Americans now favoring the law. Enrollment in the health law’s programs is at a record high. Democrats have moved from defending the 2010 law to expanding its benefits. While Obamacare remains a dirty word in some Republican circles, its repeal is no longer a focus of the party or a galvanizing issue among its voters. For nearly a decade, Republicans ran and won many elections on the promise of ending Obamacare. But their failed bid to do so in 2017 changed their political priorities. That effort left them divided, bruised and on the wrong side of public opinion.”

The coronavirus pandemic made even starker public perceptions about the importance of people’s health and the need by the poor, working poor, and middle-class Americans to have some measure of protection via insurance from bankrupting medical costs. Tens of millions of workers lost their job-based health coverage due to wallop of the pandemic recession. Millions saw themselves impoverished by the global health crisis.

The Biden Administration, working with a Congress in which Democrats had narrow control, moved to provide more subsidies and greater traction for people at more and different income levels to get health coverage via ACA exchanges or through Medicaid — a safety net program that saw major expansion as part of Obamacare. The result, as reported by the Washington Post:

“About 31 million Americans now have health-care coverage through the Affordable Care Act, the White House announced [on June5], setting a record since the law … was enacted in 2010 under President Barack Obama. According to a report from the Health and Human Services Department, about 11.3 million Americans were enrolled in health-care plans through the Affordable Care Act’s federal marketplaces as of February, with 14.8 million people newly enrolled in Medicaid through the law’s expansion of eligibility as of December. The report also counted an additional 3.9 million Medicaid-enrolled adults who would have been eligible even before the Affordable Care Act but credited ‘enhanced outreach, streamlined applications, and increased federal funding’ from the law for the numbers. The report also said 1 million people were enrolled in the Affordable Care Act’s Basic Health Program option, which covers people whose incomes are just slightly too high to qualify them for Medicaid, as well as for some immigrants. In addition, this year, because of the coronavirus pandemic, President Biden ordered an extended three-month enrollment period for people to buy health insurance through the Affordable Care Act’s federal marketplaces at HealthCare.gov. More than 1.2 million additional Americans enrolled in health-care plans through Obamacare during that special enrollment period.”

As for Medicaid itself, the independent, nonpartisan Kaiser Health News service reported this:

“The pandemic-caused recession and a federal requirement that states keep Medicaid beneficiaries enrolled until the national emergency ends swelled the pool of people in the program by more than 9 million over the past year, according to a report … The latest figures show Medicaid enrollment grew from 71.3 million in February 2020, when the pandemic was beginning in the U.S., to 80.5 million in January, according to a KFF analysis of federal data. (KHN is an editorially independent program of KFF.) That’s up from about 56 million in 2013, just before many states expanded Medicaid under the Affordable Care Act. And it’s double the 40 million enrolled in 2001. Medicaid, once considered the ugly duckling compared with the politically powerful and popular Medicare program, now covers nearly 1 in 4 Americans …Together, Medicaid and Medicare cover 43% of Americans. More than three dozen states since 2014 have used billions in ACA funding to expand coverage beyond traditional Medicaid populations to cover adults with incomes below 138% of the federal poverty level, or about $17,800.”

A curious partisan tactic — opposing constituents’ better health 

Republicans, in pursuing a theological opposition to a government role in U.S. health care and in keeping up a ferocious assault on Obamacare through multiple presidential terms, recently had gone mum on the program that some of their strategists argued would be impossible to reverse once it took root. It drew little mention in the 2020 presidential and congressional campaigns.

But GOP opponents have never – not once – offered any comprehensive option to the ACA, save perhaps “skinny” or short-term policies that feature low premiums and then provide few or no benefits when patients need them most — when ill or injured. Reports have risen about fraud and other problems in these policies, pushed by the Trump Administration.

Republicans may persist in assailing the ACA to motivate their voters. They may try to rein in the many ways that Obamacare affects U.S. health care, including by battling the expansion of Medicaid in a dozen hold-out states, such as Florida, Georgia, and Texas.

That will be yet another curious political decision, putting candidates and officeholders in the position of opposing their constituents’ better health. Again, the realities were redlined by the pandemic. But a bible of corporate America, the Harvard Business Review, made this point about booming red states, citing research by the independent, nonpartisan Commonwealth fund:

“The fastest-growing states in terms of population over the last decade, including Texas, Florida, and Georgia, consistently rank last when it comes to health and health care. This is because these states have large numbers of uninsured adults, high levels of premature death from treatable conditions, less investment in public health, too many people with mental illness unable to get the care they need, and residents facing mounting insurance costs that make health care less affordable than in many other parts of the country, according to the Commonwealth Fund.”

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 health care. This has become an ordeal due to the skyrocketing complexity, cost, and uncertainty of treatments as well as prescription medications, too many of which prove to be dangerous drugs.

Insurance, alas, has become a dominant part of the political conversation about health care in this country. It is true that is a crucial way for patients and their families to share the risks and potentially to avoid bankrupting medical costs.

But Republicans and Democrats, too, have many other important challenges to tackle to ensure that, in the wealthiest nation in the world, health care is a right, not a privilege for a wealthy few. Political analysts have lots of predictions, including the possibility of lowering the Medicaid eligibility age, grappling with drug costs, and more. Let’s see. We have much work to do to get and keep all of us safe and healthy.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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