This Election—And a Coming Supreme Court Decision—Will Decide the Future of American Health Care

It’s safe to say that COVID-19, the country’s worst public health crisis in a generation, was the single most important issue in the 2020 Presidential race. It warped the campaign, sickened a candidate, and shaped not only voters’ opinions, but how they cast their ballots.

But amidst this unprecedented crisis, the topic of American health care—the single most important issue in the 2018 midterm race—got relatively little attention once the primary was over. The candidates rarely gave speeches about insurance premiums or co-pays, and most Americans remain unclear about what, exactly, BidenCare is, or whether Donald Trump’s long-promised “brand new, beautiful health care” even exists.

In the closing days of the election, former Vice President Joe Biden tried to change that. In stump speeches across the country, he repeatedly hammered on the point that he and President Donald Trump have two divergent visions of American health care. “Donald Trump thinks healthcare is a privilege,” he told a crowd in Michigan on Oct. 31. “Barack [Obama] and I think it’s a right.”

Implicit in Biden’s stump speech was a broader truth: the future of American health care really does hang in the balance.

The results of the presidential election, combined with a hugely consequential U.S. Supreme Court case challenging the Affordable Care Act (ACA) could not only shape the American health care landscape for decades, but also determine whether millions of Americans immediately lose their health care coverage. In exactly one week, the Supreme Court, which now includes Justice Amy Coney Barrett, will hear oral arguments in California v. Texas, in which a group of conservative state attorneys general, backed by the Trump Administration’s Justice Department, is seeking to invalidate the entirety of the ACA.

If the Supreme Court strikes down the ACA, chaos would likely ensue: the federal funding for Medicaid expansion would evaporate, leaving more than 12 million people who rely on the program to likely lose coverage; the subsidies for those who buy insurance through the ACA’s private insurance marketplaces would also disappear, leaving the majority of those 11.4 million people without insurance; and all insurance providers would suddenly be allowed to discriminate against people who had pre-existing health conditions, including COVID-19, by charging them higher premiums or denying them coverage outright.

“If no part of the political process responds to the Supreme Court holding, the results would be immediate and calamitous,” says Nicholas Bagley, a University of Michigan law professor.

But that outcome is hardly guaranteed. It depends on what happens next—both what the Supreme Court decides and who wins the Presidential election.

Here are three possibilities. The first is that the Supreme Court upholds the ACA, leaving the fate of the law to a newly elected Congress. Another option is that Trump wins the election, a scenario that creates the most uncertainty around the future of American health care, as neither Republicans nor the Trump Administration have produced anything resembling a coherent replacement for the ACA. The third option is that Biden—and enough down-ticket Democrats—win the election and secure majorities in both the House and Senate, setting themselves up to either improve the ACA or pass a new health care law in 2021.

The Supreme Court Might Not Strike Down the ACA

Legal scholars from both sides of the aisle have said they don’t expect the Supreme Court justices to buy the Republicans’ argument that the ACA, stripped of its tax penalty, is unconstitutional.

“The legal arguments themselves are astoundingly weak,” says Katie Keith, a health law professor at Georgetown University. “But the law is in front of the court again 10 years after it was passed. And you can’t really take anything for granted especially with the Affordable Care Act and the political nature of the litigation that we’ve seen against the law.”

Chief Justice John Roberts has ruled in favor of the ACA in its past two Supreme Court cases, and he is expected to side with the liberal bloc again this time. But that means the decision may come down to how Barrett, Trump’s newest appointee, and his two previous judges Neil Gorsuch and Brett Kavanaugh vote. The court is likely to make a decision sometime this spring, and if it does strike down all or most of Obamacare, changes would start right away.

Trump, Who Has So Far Failed To Deliver a Health Care Plan, Wins the Election

While the President has talked and tweeted about a “beautiful” or “far better” health care plan than what Democrats are offering, his policies thus far have included a series of effectively meaningless and legally unenforceable executive orders.

Trump has said repeatedly, for example, that he wants to protect people with pre-existing health conditions, which is one of the most popular provisions of the ACA, but his only move on this so far has been to ask voters to trust him. In September, he announced an executive order declaring that it is “the policy of the United States” to “ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.” Such an order is legally unenforceable.

Meanwhile, his Administration has spent the better part of the last four years specifically unwinding precisely those protections. The current case before the Supreme Court, which is backed by the Trump Administration, would eliminate all shields for those with pre-existing conditions. Trump has also promoted short-term health insurance plans that do not have to comply with ACA rules such as covering people with pre-existing conditions, encouraged states to limit access to Medicaid, and cut the budget for outreach and enrollment efforts to help people sign up for insurance.

“This is the rhetorical problem that Republicans have gotten themselves into. Republicans wasted a decade arguing repeal and replace,” says Joel White, a Republican strategist who specializes in health policy. Republicans need to present voters with more choice and lower costs, but so far the GOP health care platform is mostly blank.

Joe Biden, Who Promised a ‘Public Option,’ Wins the Election

Biden’s detailed health care plan centers on building on and improving the Affordable Care Act and creating a government-run public health insurance plan that anyone could choose.

The idea in part is that a so-called public option would allow the federal government to negotiate and pay less to medical providers the way that private insurers do for their enrollees. And while it’s not clear how well this would work, experts say, the public option would be significant in who it covers. Biden would automatically enroll the 4.7 million adults who are eligible for Medicaid but remain uninsured because their states haven’t expanded the program, and he would allow any American who has employer-based insurance to leave their plan and join—a major step toward the long term progressive goal of eliminating private insurance. About 12 million of these people who currently get insurance through their job could find the public option to be cheaper, according to the Kaiser Family Foundation.

Biden would also lower the Medicare eligibility age to 60, allow the federal government to negotiate with pharmaceutical companies over prescription drug prices, and spend $775 billion on caregiving, which will continue to be a significant issue as COVID-19 adds to the ranks of Americans who need long-term medical care and support. “This is the biggest disability boom since AIDS and HIV in the 80s. And beyond that Polio,” says Rebecca Cokley, director of the Disability Justice Initiative at the Center for American Progress. “The social safety net is not prepared for this.”

Of course, Biden’s plans hinge on what the next Congress looks like. If Republicans retain a Senate majority, hopes for sweeping new health legislation dwindle. But even if Democrats seize both houses, Biden will need to negotiate with progressive lawmakers from his own party, who have long pushed for more comprehensive universal health care, like Medicare for All.

Any new legislation would also have to survive what most experts expect would be multiple challenges from states and the insurance industry—case that would land before an even more conservative judiciary. “There are lots of states where you’re going to see intense resistance,” says Jacob Hacker, a political scientist at Yale University who has studied shifts in policy attitudes after economic crises. “That will matter because I think that it will push political leaders towards approaches that do not rely as heavily as the Affordable Care Act does on the states.”

Biden’s campaign estimates that about 97% of Americans would have coverage under his new plan, which would cost about $750 billion over 10 years. “What we’re going to do is going to cost some money,” he admitted during the final presidential debate in October.

But his appeal to voters was clear: with the ACA hanging in the balance, Americans are not only selecting the next President this election, they are, conceivably, choosing the future of American health care.



Source: This Election—And a Coming Supreme Court Decision—Will Decide the Future of American Health Care

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