The Affordable Care Act (ACA), often called Obamacare, is a strange paradox.
On the one hand the law is perpetually on life support. Its latest setback was delivered by a federal appellate court that invalidated one of its key provisions.
On the other it’s a vibrant law that has vastly expanded Medicaid, the federal-state program that provides medical coverage for the poor and disabled, to persons who make up to 138 percent above the poverty line.
Kansas, previously resistant to expansion, would become the 37th state (plus the District of Columbia) to do so under a bipartisan agreement reached this month by Gov. Laura Kelly (D) and Jim Denning, the state Senate’s top Republican.
It’s a change of heart for Denning, who in 2019 blocked a House bill that would have expanded Medicaid. With Denning’s support the measure is expected to pass.
Many Republican legislators in other states are also taking a kinder view of Medicaid expansion these days, perhaps because they’re paying attention to the voters.
Medicaid-expansion initiatives were overwhelmingly approved by voters in 2018 in the GOP strongholds of Idaho, Nebraska and Utah. A push for similar initiatives is expected this year in Oklahoma and Missouri.
Trend-setting California includes unauthorized immigrants in its expansion plans. Governor Gavin Newsom (D) has proposed extending Medi-Cal, the Golden State’s version of Medicaid, to senior immigrants. California last year extended Medi-Cal to such immigrants up to age 26, drawing criticism from conservatives and the White House.
The change would cost California $80.5 million in the first year and ultimately up to $350 million annually. Newsom suggested it was part of a universal health care approach that would ultimately save money.
“It is the right thing morally and ethically,” he said. “It is also the financially responsible thing to do.”
Despite the Medicaid expansions made possible by Obamacare, the law is once again in jeopardy, as it has been periodically since passage by Congress in 2010.
In December 2019 a federal appeals panel ruled on a 2-1 vote in Texas v. United States, a lawsuit brought by Republican state attorneys general, that a central feature of the ACA requiring people to have health insurance was unconstitutional.
Instead of invalidating the entire law, the panel of the U.S Court of Appeals for the 5th Circuit, sitting in New Orleans, returned the lawsuit to U.S. District Judge Reed O’Connor of Fort Worth, Texas, with directions to “conduct a more searching inquiry” to see if other parts of the ACA could stand without the mandate.
O’Connor in 2018 struck down the entire ACA, saying that a requirement that people obtain health insurance, known as the mandate, could not be severed from the rest of the law.
The appeals panel asked O’Connor to justify his sweeping decision, directing that he “employ a finer-toothed comb.”
In a 5-4 decision written by Chief Justice John Roberts in 2012, the Supreme Court upheld the constitutionality of the mandate, which required most Americans to purchase health insurance or face a penalty. But in 2017 at the behest of President Donald Trump, the penalty was eliminated in a tax bill passed by Congress
Republican state attorneys general saw elimination of the mandate as an opportunity to go after the ACA again and searched for a favorable court. They settled on Judge O’Connor, known for his conservatism.
Legal experts question the lawsuit, as does Sen. Lamar Alexander (R), chairman of the Senate Health Committee.
“I am not aware of a single senator who said they were voting to repeal Obamacare when they voted to eliminate the individual mandate penalty,” said Alexander, a moderate who is retiring this year.
With the notable exceptions of Roberts, Alexander and the late Sen. John McCain (R-AZ), the battle over the ACA has been marked by intense partisanship.
The law was passed on a Democratic party-line vote. Before it became operative, Republicans demonized it in the 2010 midterm elections, winning the House of Representatives and taking control of 19 state legislative chambers previously held by the Democrats.
The ACA took effect in 2013. It’s been a hit with those who receive its subsidized policies and has reduced the number of Americans who lack health insurance from 46.5 million in 2013 to 27 million by 2016. (The number of uninsured has crept up by more than a million since the penalty for not having health insurance was eliminated.)
But this achievement has not diminished the partisan prism through which many view Obamacare.
Judge O’Connor is a Republican, and the two appellate judges who declared the mandate unconstitutional were appointed by Republicans, one of them by Trump. The dissenter was appointed by President Jimmy Carter, a Democrat.
The public was also divided largely on party lines until Republicans attempted to repeal the law in 2017, which had the ironic effect of boosting Obamacare’s popularity.
The repeal effort was thwarted by a trio of Republican senators who joined with Democrats to save the ACA. The decisive vote was cast by Sen. McCain, who had been recently diagnosed with the brain cancer that would kill him a year later. He gave a dramatic thumbs down to the repeal bill in a late-night Senate session on July 27, 2017.
Obamacare has been popular ever since. The latest poll, taken in November by the Kaiser Family Foundation, found that 52 percent of respondents favor the law and 41 percent oppose it.
After the appellate panel ruled against the mandate, California Attorney General Xavier Becerra (D) petitioned the Supreme Court to intervene. He acknowledged that the panel’s decision had given Republican opponents of the law the upper hand.
“For now, the president got the gift he wanted — uncertainty in the health care market and a pathway to repeal,” Becerra said in a telephone call with reporters the night of the court’s ruling.
Becerra and other Democrats want the Supreme Court to consider the case while the majority that has twice upheld the constitutionality of the ACA remains intact. The majority consists of Chief Justice Roberts and the four justices appointed by Democratic presidents.
The Supreme Court has yet to say if it will take over the case. If it waits until Judge O’Connor re-examines the ACA, the issue probably would not reach the high court until after this year’s elections.
Among other things, repeal of the ACA would mean that more than 50 million people with pre-existing conditions could again be denied health insurance and insurers would no longer have to cover people up to age 26 under their parents’ health plans.
The good news for supporters of Obamacare is that the law seems to be holding its own despite the removal of the requirement that everyone obtain health insurance.
Nearly 8.3 million people signed up for ACA coverage on the federal exchange, HealthCare.gov for 2020, only slightly below the 8.4 million figure for 2019.
Thirty-eight states use HealthCare.gov as their marketplace or exchange on which people can sign up for coverage.
Twelve states and the District of Columbia manage their own exchanges, which will cover at least three million more people. Exact numbers are unavailable because Covered California, the biggest of these exchanges, has extended the sign-up period to January 31.
Covered California has had notable success in reducing the number of medically uninsured. California’s uninsured rate decreased from 17.3 percent in 2013 to 7.2 percent in 2018 with 3.7 million people gaining coverage during that time.
Despite its success, or perhaps in part because of it, Obamacare continues to come under fire from Right and Left.
Some Republicans describe the ACA as “socialized medicine,” which it isn’t. Some Democratic progressives including presidential candidates Bernie Sanders and Elizabeth Warren want to replace the ACA with a genuinely socialized plan they call Medicare for All.
But as New York Times columnist Paul Krugman, himself a progressive, recently observed “universal government provided health insurance isn’t going to happen anytime soon” even if Democrats win the White House and, less likely, the U.S. Senate in this year’s election.
The oft-challenged Affordable Care Act has been kicked around like a soccer ball. But for millions of Americans it remains their only recourse for health insurance, a role it will continue to play if it survives in Congress and the courts.
-- By Lou Cannon
Medicaid Expansion Adopted in 36 States and Counting
As of Jan. 10, Medicaid expansion had been adopted in 36 states and implemented in all but one of them, NEBRASKA, according to the Kaiser Family Foundation. KANSAS Gov. Laura Kelly (D) and Senate Majority Leader Jim Denning (R) had also reached an agreement on legislation to expand Medicaid in that state.
Source: Kaiser Family Foundation