Between the protests and the pandemic, you’d be forgiven for forgetting that the Affordable Care Act is still in limbo. But the events of the last week have set the stage for Democrats and Republicans to fight a 2020 rematch of the battle over health care coverage: between the party that giveth, and the party that taketh away.
The Trump Administration asked the Supreme Court on June 25 to overturn the law known as Obamacare, joining a group of Republican attorneys general in arguing that Congress effectively made the ACA unconstitutional in 2017 when it zeroed out the individual mandate. The ACA 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. Now the law faces an existential legal threat for the third time in its 10-year history. “The entire ACA thus must fall with the individual mandate,” Solicitor General Noel Francisco wrote in the Administration’s brief.
The Trump Administration’s challenge to the law comes as the coronavirus pandemic has left more than 120,000 Americans dead and thrown millions off the health care rolls due to lost jobs. If the court decides to overturn the law, the impact would ripple through nearly every part of the U.S. health system. Dismantling the law would worsen racial disparities and make it harder for sick people to get new coverage at a time when COVID-19 is disproportionately impacting Black and Latino Americans and leaving hundreds of thousands with potentially lasting health problems. It would also leave 23 million Americans without health coverage, according to an analysis by the liberal Center for American Progress think tank.
The Supreme Court has not said when it will hear the ACA case, but oral arguments will likely take place this fall, as President Donald Trump and presumptive Democratic nominee Joe Biden make their case to voters. Democrats believe Trump’s decision to elevate the fight over health care coverage will play to their advantage, just as it did in the 2018 midterms, when the party recaptured the House of Representatives with the help of Republicans’ attempts to dismantle the Affordable Care Act.
“Everybody knows that Trump and the GOP’s attacks on health care were a driving force behind the energy that built the blue wave in 2018. Now Trump is fighting yet again to trash the Affordable Care Act and replace it with a shrug,” says Ezra Levin, co-founder of the liberal grassroots network Indivisible. “We welcome this political malpractice, and it makes it easy for Biden to simply stand against death and destruction—which is, you know, a winning campaign message.”
Biden previewed this message in a speech last week in Lancaster, Penn. “Perhaps most cruelly of all, if Donald Trump has his way, complications from COVID-19 could become a new pre-existing condition,” Biden said after a roundtable with Pennsylvania voters who said they had benefitted from the Affordable Care Act. He added that that without the ACA, lung scarring and heart damage from COVID-19 could make it difficult for survivors to get future coverage. “They would live their lives caught in a vise between Donald Trump’s twin legacies: his failure to protect the American people from the coronavirus, and his heartless crusade to take health care protections away from American families.”
The simplicity of the contrast is a gift to Biden. During the primary, Biden struggled at times articulate a winning message on health care, amid a massive intra-party squabble over whether or not to push for Medicare for All. Now he seems poised to run on the same playbook that helped Democrats win swing states in the midterms: arguing Republicans are trying to take away American’s health care, while he would protect it.
Pushing to overturn the ACA has been a Republican goal ever since the law first passed in 2010, and opposition to the health care law fueled the rise of the Tea Party during the Obama presidency. But in recent years, attempts to gut Obamacare have benefited Democrats more than Republicans, as more and more Americans have gotten used to the law’s protections. A June poll from the Kaiser Family Foundation found that 53% of Americans trusted Biden to handle health care policy, compared to just 38% who trusted Donald Trump.
One of the reasons that Republicans have historically fought so hard to avoid implementing new social programs is that once a benefit is given to the American people, it becomes very difficult to take it away. While it was initially unpopular, Americans have warmed up to to the Affordable Care Act: by its 10-year anniversary, 55% of Americans viewed Obamacare favorably, according to the Kaiser Family Foundation, an all-time high.
The pandemic has only underscored its importance. Of the nearly 27 million people who relinquished health insurance when they lost their jobs through early May, the Kaiser Family Foundation estimated that 48% were eligible for coverage through Medicaid, which was expanded under the ACA, and another 31% were eligible for subsidies to help them afford new plans on the marketplace.
People have been taking advantage of these options. The Trump Administration’s brief came the same day as a report from the Centers for Medicare and Medicaid Services that showed 487,000 Americans bought insurance by using the special enrollment period that opens when individuals lose their health coverage, and most states that run their own marketplaces have also created new COVID-19 special enrollment periods to allow more people to get covered.
Without the ACA, fewer people would be eligible for coverage through Medicaid and many more low- and middle-income families would struggle to buy insurance. Protections for those with pre-existing conditions would disappear, as would requirements that insurance companies sell to anyone who wants it and charge the same price to anyone who buys similar insurance.
All of this would be worse for people of color. The ACA significantly narrowed racial and ethnic coverage gaps in the years after it was passed, though gains slowed when Trump was elected in 2016. But now that Black, Hispanic and Native Americans are dying and being hospitalized from COVID-19 at higher rates than white Americans, doctors have emphasized that health coverage is more important than ever.
“Trump’s deadly move comes at a time when there is still so much work left to do. The Trump Administration’s own data this week showed that Black Americans are four times more likely to be hospitalized with COVID-19. That confirms long standing disparities we all were aware of,” California Attorney General Xavier Becerra, who is leading the group of Democratic states fighting to preserve the ACA, told reporters on June 24. “Now is not the time to rip away our best tool to address very real and very deadly health disparities in our communities.”
Republicans have not put forward their own alternative health care plan to replace the ACA. Health and Human Services Secretary Alex Azar recently told CNN’s Jake Tapper that the Administration would protect those with preexisting conditions but that specifics were still up in the air. “The exact details will be dependent on the—frankly, the composition of Congress if and when the Supreme Court does strike down all or a large part of Obamacare,” Azar said.
But voters don’t respond well to plans to take away Americans’ health care without a concrete plan to replace it. They may balk even more during a global pandemic. And Biden will make sure voters don’t forget which party is fighting to gut health care coverage, and which side is fighting to protect it.
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