Last week American voters chose a new President. The impacts of President Trump’s tumultuous presidency may last long after he leaves the White House. For example, this week the U.S. Supreme Court will take up the question of the constitutionality of the Affordable Care Act – known as “Obamacare.”
Will they kill the ACA?
This fight has been going on for over a decade with opponents – including the President – arguing that it is time to “repeal and replace” the ACA.
The campaign has been one of the most cynical in modern American politics. Opponents – including the Republican party leadership – have since 2010 had time to develop their own alternative, but they never developed one. The President has claimed repeatedly that he has a “great plan” that he’ll soon roll out. After all this time it is hard to conclude anything other than they have lied to the American public about their intentions.
After failing to kill ACA in Congress, it is now clear that the Republican strategy is to get the Supreme Court to do it.
If the lawsuit brought by states’ Republican Attorneys General – and backed by the President –succeeds, protections for those with pre-existing health conditions would be jeopardized, public health programs – like those that provide coverage for flu shots and cancer screenings – would face cuts in funding, and about 23 million Americans would lose their health insurance – while the world is in the middle of the coronavirus pandemic.
Eight years ago, the ACA survived a legal challenge and was found to be constitutional, with the Chief Justice writing for the majority in a 5 to 4 decision. The Court that will hear the case on Tuesday, however, has three new, more conservative, judges. The most recent Trump appointee, Justice Amy Coney Barrett, has criticized the Chief Justice’s legal reasoning in that case.
There is a lot riding on the decision.
Here in New York, under the ACA the federal government picks up half the tab for the state’s Medicaid costs. Currently, New York’s Medicaid program costs over $67 billion. So, if the ACA is struck down by the Supreme Court, New York could lose tens of billions of dollars in federal aid used to provide health insurance to New Yorkers.
And that potential loss of federal aid comes at the worst possible time. New York is facing a budget shortfall of as much as $13 billion this year and that could hit $60 billion cumulatively over the next four years.
If the Supreme Court strikes down the entire law, it is possible that the incoming Biden Administration could cobble together a new response. If Democrats manage to take control of the Senate along with the House, they could enact fixes to the Court’s decision.
However, if the Democrats fail to win run-off elections in early January resulting in a divided Congress, such moves seem unlikely. While the law is very popular among independent voters as well as Democrats, and even most Republican voters support its pre-existing condition protections, Republicans overall still want to see the law overturned. As a result, it is hard to imagine a Republican-led Senate approving an expansion of health coverage.
Moreover, a failure to hammer out a bipartisan agreement would devastate New York’s finances and threaten the health of tens of millions of Americans.
The ACA may be imperfect, but millions of Americans rely on it for their healthcare and most of us benefit by the preexisting conditions protections. The Supreme Court should tread lightly in its review considering the law has survived reviews by prior courts and the enormous positive difference it makes in the lives of tens of millions of Americans.
Instead, the new President and the Congress should expand health care coverage. While there is no good time to take away people’s health insurance coverage, doing it during a global pandemic is uniquely cruel. Universal coverage should be the goal of public policy.
Here’s hoping that the Court leaves the ACA in place.
Blair Horner is executive director of the New York Public Interest Research Group.
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