Trump is still pushing for ACA repeal

Amid the sharp political divides over its handling of the coronavirus pandemic and ongoing racial protests, the Trump administration continues its push to invalidate the Affordable Care Act (ACA) through the courts – a move that could prove to be one of the riskiest decisions in President Donald Trump’s reelection efforts and could also severely complicate who controls Congress.

The decision to file its brief to undo the ACA at the U.S. Supreme Court before it hears the case for the third time in the fall, reveals a sharp dividing line in the health care debate before the election – whether the federal government should do more or less to ensure access to health insurance. It pits former Vice President Joe Biden and Democrats versus Trump and Republicans in their contest for the White House.

Even if no one seems to be paying much attention to it, this issue has the potential – mixed in with how people assess the Trump administration’s handling of coronavirus – to make health care issues the key decision point on who wins on November 3.

The coronavirus has severely strained the U.S. health system, robbed millions of Americans of health benefits, and resulted in the deaths of more than 135,000 Americans – and still rising – and caused economic chaos for millions more.

When it comes to President Trump, most people are dug in. He understands that his core followers will never abandon him. People either want him gone or admire him more than Abraham Lincoln. Somewhere in the middle is a small group, still open to hearing what he has to say, and that group is who he is counting on to pull him to victory.

The nation’s divide is so sharp that about the only line in Trump’s standard campaign speech that critics and supporters can unanimously agree on – for obviously opposite reasons – is when he boasts “nobody has done what we have done.” That frames the context of the renewed debate over the administration’s push to, once again, eliminate the ACA, still called ‘Obamacare’ by most.

Do the math and it is clear why health care once again can decide the elections. If Obamacare is ultimately destroyed, what goes with it immediately is coverage for those with pre-existing conditions because Congress would need to enact legislation to save that feature from being undone. Getting Congress to agree on the sun rising in the east is nearly impossible these days; it’s even harder to overcome a potential White House veto.

A 2019 analysis by the Department of Health and Human Services found that between 50 million and 129 million non-elderly Americans (under 60 years old) have some type of pre-existing health condition. In addition, Medicare estimates that 86 percent of people over age 55 have a pre-existing condition, of the 64 million people currently on Medicare (roughly 55 million people).

That makes at least 125 million people immediately affected by a decision. Now add in the 27 million more people who currently participate in the federal or state exchanges and those who get Obamacare through Medicaid. And of course, most of these people have families, too. If the court decides to overturn the Obamacare law, the impact will send a tsunami-like wave through nearly every part of the U.S. health system.

Dismantling the ACA would worsen racial disparities and make it harder for sick people to get new coverage at a time when COVID-19 has already disproportionately impacted black and Latino Americans.

In April and May, the economic downturn caused by the pandemic also prompted 487,000 newly unemployed people who lost their employer-sponsored health insurance to sign up Obamacare as stopgap health coverage, providing a cushion that did not exist during the last crushing recession or ever before.

While the U.S. Supreme Court case will not be decided until 2021, oral arguments could come just weeks before the November elections, putting added attention on the issue in the final push toward the election. It is likely to happen in the same October-November time frame as the potential deadly confluence of seasonal flu virus and an additional round of COVID-19.

Before Obamacare

Before the ACA became law in 2010, insurance companies could consider a person’s health status when determining premiums, sometimes making coverage unaffordable or even unavailable if a person was already sick with a problem that required expensive treatment.

Obamacare prohibited this practice through two provisions: “guaranteed issue,” which means insurance companies must sell insurance to anyone who wants to buy it, and “community rating,” which means that people within the same geographic area who buy similar insurance and are the same age pay similar prices. The two together made insurance affordable for people with health issues. Before the 2010 Affordable Care Act, even minor health problems could have led an insurance company to deny coverage.

Since he took office in 2016, Trump has claimed nearly 100 times that, in his words, he would “always protect patients with

preexisting conditions, always, always, always.” But the legal brief filed by his Justice Department in the Affordable Care Act case at the Supreme Court says point blank that the entire piece of legislation – including its coverage guarantee for people with pre-existing conditions – “must fall”, which directly undercuts the president’s pre-existing condition pledge.

For all his promises, Trump, in his three years in office, has offered no specific plan to replace these, or any, provisions of the law. He has supported legislation to water down protections for people with preexisting conditions, and his administration has issued new rules promoting plans that allow insurance companies to deny coverage or charge higher prices to sick patients.

Court case

Obamacare has survived two previous Supreme Court challenges, including a 5-4 ruling upholding the law in 2012, when Chief Justice John Roberts ruled the individual mandate was constitutional under Congress’s power to levy taxes and again in 2015.

The current challenge stems from the $1.5 trillion tax cut passed by the Republican-controlled Congress in 2017, which repealed the health care law’s tax on people who refuse to buy insurance. That tax was intended to prod them into the health care marketplace rather than let them seek emergency care while uninsured.

A Texas federal district judge ruled that without the tax, the law could not survive. An appeals court panel agreed 2-1 that the individual mandate is

unconstitutional, but rather than strike down the entire law, like the district judge did, the appeals court sent it back to a lower court for “additional analysis” about whether the individual mandate can be severed from the rest of the law.

Medicaid expansion and seniors also are at risk

At the very same time as the Trump administration was submitting its written brief before the Supreme Court, states have been moving ahead on expanding Medicaid. Voters in Oklahoma – a state Trump won by 36 points – narrowly approved a ballot initiative to expand Medicaid to nearly 200,000 low-income adults, the first state to do so in the midst of the coronavirus pandemic. That vote put Oklahomans, many of them conservative, at odds with Republican leaders, who have worked to block or invalidate Obamacare. Five states — Maine, Utah, Idaho, Nebraska and now Oklahoma — have used ballot initiatives to expand Medicaid after their Republican governors refused to do so.

Medicaid expansion could spread further into Republican-controlled states this year, as several are weighing how to cover the many unemployed Americans expected to lose health insurance along with their jobs. Missouri voters will decide on a ballot initiative at the state’s August primary.

Medicaid expansion has proved an especially resilient part of the health care law, despite early challenges. All of that too could go away, depending on the Supreme Court’s 2021 decision.

Eliminating the Obamacare law would also severely hit another vital constituency in the election – older Americans. The pandemic clearly exposed the problems that many nursing homes are facing in the U.S. as those facilities house the frail elderly who were most vulnerable to COVID-19. An estimated 40 percent of U.S. deaths from the coronavirus have taken place in nursing homes or long-term care facilities, as overcrowding, the close quarters inherent to any shared-living situation, poor infection control, short-staffing, lack of registered nurse supervisors and lack of adequate personal protective equipment have been contributing factors.

But if the Supreme Court were to eliminate the Affordable Care Act, one of the consequences could be to wipe out funding of nursing homes because most are largely dependent on Medicaid.

Dismantling the law would also weaken patient protections, severely limit long-term options and also strip many nursing home employees of their own health care coverage.

Also contributing were CNN, the Atlantic, New York Times, Washington Post, USA Today, Healthline and Slate.