Millions of Americans stand to gain — or lose — health care coverage in the 2020 presidential election.
An unfavorable Supreme Court ruling next year could mean potentially millions of low-income and middle-class people lose their health coverage in the middle of a pandemic. A freshly seated Justice Amy Coney Barrett and other conservative justices could invalidate most or all of the Affordable Care Act, as Donald Trump’s administration is urging the Court to do.
The Trump administration announced its plan to protect people with preexisting conditions under that scenario last week that was, in effect, no plan at all. It was instead a plea to trust that Trump would figure out a way to restore the protections, despite his efforts to roll them back throughout his first term.
The Supreme Court could also reject the argument for overturning the ACA. And if Joe Biden wins the presidency, he could wield a mandate to expand health coverage to millions more Americans, creating for the first time a government health insurance plan that would be available to middle-class, working Americans as an alternative to the private coverage offered by their employer. Low-income people who live in the states that have refused to expand Medicaid would be enrolled in that new government program, expanding the safety net to millions of people to whom it’s so far been denied.
Universal health coverage would be within reach. A decade after Obamacare passed, Joe Biden could complete its mission.
Democrats are framing Senate Republicans confirming Trump’s new Supreme Court nominee as an existential threat to the ACA and its most popular provisions. It is a new spin on their most successful message in the 2018 midterms, when Democrats hammered Republicans for their efforts to repeal the health care law and won a House majority on the strength of that argument.
“What’s at stake here, as the president has made it clear, he wants to get rid of the Affordable Care Act. He’s been running on that. He ran on that and he has been governing on that,” Biden said at the first presidential debate Tuesday. “He’s in the Supreme Court right now trying to get rid of the Affordable Care Act, which will strip 20 million people from having insurance.”
But if Democrats actually get a chance to govern, they will have to decide how ambitious to be in the middle of a pandemic and an economic recession. The center of gravity in the Democratic Party and in the country on health care has shifted substantially to the left since Biden and Barack Obama won in 2008. Obamacare is pretty popular, the winning issue for Democrats that House Speaker Nancy Pelosi was once ridiculed for saying it would be. A public option — once so radical it was stripped from the Affordable Care Act in a futile effort to win over Republican votes — is considered the moderate alternative to single-payer Medicare-for-all.
The possible futures for US health care have perhaps never been so disparate as they are today. In one of the most extreme scenarios, 20 million people could lose health insurance. In the other, 25 million people could gain coverage.
The first domino will fall in the November election, when America’s voters decide which candidate they want to preside over the next chapter of health reform.
Trump doesn’t have a plan if the Supreme Court ends coverage for 20 million people
The Supreme Court has scheduled oral arguments in California vs. Texas for November 10, the week after Election Day. Republican-led states and the Justice Department have urged the Court to invalidate the ACA in its entirety, arguing that because the individual mandate penalty has been repealed, the rationale used to save the law in 2012’s National Federation of Independent Business v. Sebelius (for which Chief Justice John Roberts wrote the Court’s majority opinion) no longer applies — so Obamacare must fall.
Trump would be the silent author of a ruling striking down Obamacare if the three justices he’s appointed — Neil Gorsuch, Brett Kavanaugh, and, assuming she is confirmed in time to hear the case, Amy Coney Barrett — side with the archconservatives Clarence Thomas and Samuel Alito to overturn the law. A decision would likely come in the spring of 2021.
In that scenario, more than 12 million people who gained coverage through Medicaid expansion could lose their coverage. And so could most of the 11.4 million people who purchase coverage on the law’s private insurance markets, because they rely on federal subsidies that would also be nixed. Protections for preexisting conditions would be wiped off the books. The provision that guarantees free preventive care, including contraception, would be gone. The US would be effectively starting over, as if a decade of health reform never happened.
But if the Court rules as Trump is asking them to, his administration does not actually appear to have a plan to replace the ACA. The president is promising something “much cheaper and far better” — such a ruling “would be a big win for the USA,” as he recently tweeted — but the White House has offered no evidence such a plan exists.
After weeks of promises about a forthcoming health care plan, the Trump administration convened a call with reporters last week to unveil some health policy news. But the details were staggeringly meager: Trump would sign an executive order that “it is the policy of the United States” that people with preexisting conditions would be protected.
That order doesn’t actually have any force of law. With Obamacare eradicated, insurers would be free to begin charging people higher premiums or denying coverage altogether because of their medical history. And it was already exposed during the Republicans’ failed Obamacare repeal fiasco that no consensus currently exists within the party about how to protect people with preexisting conditions. It would seem to require government spending and regulations for insurers — both of which are antithetical to the GOP’s stated ideology.
Some conservatives would probably be comfortable with reconstituting many of Obamacare’s policies — guaranteed issue, tax subsidies, and the like — with tweaks that they believe would make premiums cheaper.
“It’s an alternative form of the individual market, with important technical differences,” Avik Roy, president of the free market Foundation for Research on Equal Opportunity and a proponent of such a plan, told me recently. “We’d end up in a pretty similar place, but with a reformed individual market.”
But others on the right, including the Trump administration in its proposed federal budgets, still support a framework similar to 2017’s Graham-Cassidy bill, which would effectively take the money appropriated by Obamacare and turn it into block grants for states to spend as they see fit (and which would lead to millions of Americans losing coverage, according to estimates from the Congressional Budget Office). Either way, cuts to Medicaid seem likely if Republicans are reforming the health care system. Both camps are proposing them.
The pressure to act and prevent millions of people losing coverage would be enormous. But the White House still has no official plan, a month before the election and Supreme Court oral arguments, and Trump has not proven adept at passing major legislation through Congress. So it must be treated as a plausible outcome that if the Court strikes down Obamacare, no deal gets done and the law is allowed to lapse without anything to replace it.
The US uninsured rate was already ticking up under Trump, after he undermined the ACA’s private markets through regulatory action, and Covid-19 has led to several million more people losing coverage. The losses could be even greater under this worst-case scenario, up to 20 million people suddenly uninsured with no guarantee of a fix.
Joe Biden’s plan would cover more than 20 million people — if it ever becomes reality
No matter how the Supreme Court rules in the Texas case, Joe Biden could have an opportunity to reshape American health care. If the Court were to strike down the ACA, then the Biden administration would obviously be forced to react.
But even if the justices uphold the law, Biden could still decide proactively to push through another health reform bill. Some senior Democrats are imagining what they have called a “Never Again” agenda if they control the White House and Congress, a response to Covid-19 that addresses many of the weak spots exposed by the pandemic. Covering the 30 million or so Americans who are still uninsured would be a natural fit for such a legislative agenda.
Even for Biden, the consummate Washington operator, passing a major health care bill would be challenging. Democrats will have big decisions to make, starting with how to pass a bill through the Senate. Should they use budget reconciliation, with the limitations that it places on spending? Should they eliminate the filibuster and pass whatever bill they come up with via a bare majority? Those will be delicate discussions.
Then comes the policy. Some Democratic aides I’ve spoken with think the smart move, assuming the party enjoys a full sweep in the election, would be to keep up the pressure on Republicans. Democrats could pass legislation they believe will be overwhelmingly popular with the public and dare Republicans to oppose it. That would be an argument for being a little more restrained on health care; rather than try to establish a public option, which the health care industry fiercely opposes and will spend millions trying to turn public opinion against, Democrats could choose to expand the existing Obamacare subsidies for private insurance instead.
But progressives, especially those in an expanded House majority, are going to push for more — a public option, at a minimum, given Biden’s stated support for it. And given how much health care politics have shifted in the years since Obamacare passed, Democrats might actually be able to create a public option without risking a voter backlash if they go that route.
More Americans approve of the ACA (49 percent in the September Kaiser Family Foundation’s tracking poll) than disapprove of it (42 percent). At the beginning of this year, nearly 70 percent of Americans said they support creating a public health insurance option to compete with private plans.
Even the center-left candidates whom Democrats are trusting to win competitive Senate races and a new majority now say they are on board with the public option, 10 years after then-Sen. Joe Lieberman threatened to block Obama’s health reform legislation unless the public option was removed.
“I believe we should let Americans stay on their private insurance if they want to,” Barbara Bollier, the Democratic Senate candidate in Kansas, said in response to a policy questionnaire Vox sent to campaigns. “But they should also have an affordable public option they can buy into if they are either not happy with their plans or lack coverage.”
Biden could seize that momentum to push Democrats to pass a public option next year. He is proposing that the 2 million people currently locked out of coverage because their state hasn’t expanded Medicaid through Obamacare be automatically enrolled in the new public plan at no cost. As many as 12 million people who currently get their insurance through their work could find the public option to be a cheaper alternative, according to estimates from the Kaiser Family Foundation. Biden also wants to expand the premium tax subsidies so they would pay for a more generous plan and more people would qualify for them. People currently ineligible for that government assistance could see their monthly premium drop by half or more.
The chart below, from the Kaiser Family Foundation, compares what percentage of their income a person making too much money to qualify for Obamacare’s subsidies pays for health insurance under the status quo versus what they would pay under Biden’s plan.
By the Biden campaign’s estimates, 97 percent of Americans would have health insurance under his plan. The Urban Institute modeled a program very similar to what Biden is proposing and found that all legally present US residents would have coverage; about 6.6 unauthorized immigrants would remain uninsured.
The CBO estimates about 20 percent of 30 million uninsured Americans are not lawfully present, meaning Biden’s plan would provide coverage to as many as 24 million currently uninsured people if Urban’s projections are correct.
So in the most pessimistic post-election scenario, 20 million people could lose their insurance; in another more optimistic reality, more than 20 million people could gain it. The difference would be who sits in the White House come January 20, 2021.
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