July 9, 2019; Colorlines
We can’t believe we’re having the fight over the Affordable Care Act again. Still, here we are.
In 2018, a group of seven Republicans filed a case against the federal government, alleging, “The ACA injures the individual plaintiffs by requiring them to purchase health insurance, increasing their health-insurance costs, and limiting their health-insurance choices.”
“The individual mandate is not severable from the guaranteed issue and community-rating provisions,” they say, “and the rest of the ACA is not severable in turn.”
Here’s what they mean in plain English. In 2012, Chief Justice John Roberts opined that the individual mandate was constitutional because it offered consumers a choice between getting insurance and paying a tax, and therefore fell under Congress’s authority to levy taxes. However, the Tax Cuts and Jobs Act—President Trump’s disastrous tax bill, passed in 2017—set the tax at $0, essentially eliminating that option and thereby forcing people to buy insurance. This, say the plaintiffs in Texas v. United States, is unconstitutional.
Furthermore, the plaintiffs argued—and District Court Judge Reed O’Connor agreed—that without the individual mandate, the entire bill falls apart and must be repealed.
It’s been awhile since the Affordable Care Act was passed, so let’s review some of the things it achieved: mandatory coverage for patients with preexisting conditions, from cancer to pregnancy; allowing kids to stay on their parents’ insurance until age 26; expanded Medicaid access that allowed millions of Americans to get insurance for the first time; and requirements for things like nutritional information in processed food to be made public to help people make better decisions about their health.
It’s a standard wisdom of public governance that even if a public benefit is hard to establish, it’s infinitely more difficult to take away. People don’t like to lose things they’ve come to rely on even if they said earlier they didn’t want it. So it is with the ACA. Lawmakers fought like hell for years to establish the new vision of care, and now that it’s under threat, citizens and industry alike are rising up.
An amicus brief was filed by 17 healthcare providers, affiliate networks, and advocacy organizations, including the American Medical Association, the American College of Physicians, and the American Medical Women’s Association. They argue that failing to sever the individual mandate from the rest of the ACA—therefore striking down the whole law—would “have devastating effects on the quality, cost, and availability” of healthcare.
Physicians aren’t the only ones alarmed. The Center for Budget and Policy Priorities tweeted, “Striking down the ACA, as the #TxvUS case might do, would weaken #Medicare. So much that we can’t even fit all of the consequences in one picture. #WhatsAtStake.” Advocacy groups like Protect Our Care, Little Lobbyists, and Community Catalyst also pledged to fight.
It seems there isn’t much hope for preserving the individual mandate. Shelby Livingston at Modern Healthcare wrote, “A panel of federal appellate judges on Tuesday hinted they will rule that the Affordable Care Act’s so-called individual mandate is unconstitutional, but seemed skeptical that the entire healthcare law should fall because of that provision.”
The Urban Institute published a study in March showing the consequences of repealing the ACA. They include knocking nearly 20 million Americans off their insurance, reducing Medicaid/CHIP spending by almost $10 billion, and a $50 billion rise in the demand for uncompensated care.
It seems advocates’ hopes fall primarily on losing the individual mandate but preserving the rest of the law for now, and taking the fight to the Supreme Court at a later date.—Erin Rubin