//  12/17/18  //  In-Depth Analysis

As most people know by now, on Friday night, a federal judge in Texas relied on a flimsy legal argument to declare the entire Affordable Care Act unconstitutional.  The opinion works a violation of separation of powers and misapplies settled law. For more on the merits, please see my op-ed with Jonathan Adler (who opposed the A.C.A. in both previous Supreme Court challenges, so that should tell you something about the weakness of this opinion). 

Here, I want to make crystal clear the jaw-dropping human consequences of the decision.

The A.C.A. is long: 2,000+ pages long.  And by now many people probably have forgotten what it was like to get insured before the A.C.A, or mistakenly think the A.C.A. only helps poor people. The A.C.A. does so much more.  It’s time to remember all the things the law adds, so we know what is now potentially lost and so the appellate courts, the public, and Congress understand what’s at stake. 

You probably remember the A.C.A. has a lot of insurance reforms. But you may not realize that you benefit from many of these provisions even if you get coverage through your employer and even if you don’t get your plan on the A.C.A. insurance markets.

Thanks to the decision, gone would be the following insurance protections, and many more:

  • Health insurers could deny or cancel coverage for people with pre-existing conditions in most markets.
  • You could now be charged money for insurance more based on your health, gender and occupation.
  • There would be no more prohibition on lifetime limits on health care spending. (Before the A.C.A. those limits meant insurance only took you so far if you had a very serious health condition.)
  • There would be no more out of pocket maximum.
  • There would be no more coverage of young adults on parents’ plans up to age 26.
  • There would be no more government subsidies to help you buy insurance.

Here are some other A.C.A. insurance benefits you may now take for granted and not realize from whence they came:

  • Basic health benefits we assume are always covered—including maternity coverage and mental health—could now be denied if you buy your own insurance or get it through a small employer.
  • Important preventive services like cancer screening and contraceptive services will no longer necessarily be covered--you could have to pay for them out of pocket unless your state passes a law saying otherwise.
  • Vaccines for your kids were covered under the A.C.A., but before the A.C.A. many insurers required a copay and you now may have to pay for them again.
  • Well-baby and well-child exams were covered and now may not be.
  • You could now be charged a co-pay if you go to an emergency room out of network.
  • There would be no more health insurance marketplaces, which allow consumers to see and compare insurance plans before they buy.
  • There would be no more requirements that large employers offer employees health insurance.

And then of course we lose the expansion of Medicaid.

Medicaid has already covered some 15 million extra Americans.  Even those who had Medicaid before the ACA would lose the advantages of the simplifications brought by the ACA (those simplifications have increased Medicaid enrollments even in states that have not expanded coverage). In total, roughly 20 million fewer people are estimated to lose access to care, including the care Medicaid provides to treat the opioid epidemic. Children in foster care also would lose the additional coverage the A.C.A. extended for them as they transition into adulthood. 

Don’t forget Medicare.

  •  The ACA made Medicare’s pharmaceutical benefit a lot more generous-- don’t be surprised now when you need to pay for your high price drugs.
  • Medicare preventative care without copay? Gone.
  • Medicare payment reforms would be gone including the whole new structure of Medicare Advantage.
  • Essential funding that has expanded the solvency of the Medicare trust fund so that Medicare continues to be available into the future would also be gone

The A.C.A. also offered advances in public health, which will now be lost, including:

  • Loss of the Prevention and Public Health Fund, which supports community-based programs that tackle social determinants of health
  • Loss of the Community Health Center Fund, which provides about 70 percent of federal grant programs for these clinics that provide care to 24 million patients, as well as national health service corps scholarships for thousands of physicians, nurses, and dentists to deploy to the biggest rural and urban health professions shortage areas.
  • Gone would be calorie labeling on restaurant menus in most localities.
  • Gone would be mandatory break time for nursing mothers.
  • Lost would be the reauthorization and reform of the Indian Health Services Act.

Other good government reforms that make healthcare affordable and accessible would be gone too, including:

  • A pathway for the approval and sale of generic biologic drugs, which would save Americans billions on drug costs.
  • More tools to help the government combat health care fraud.
  • Training for new doctors.
  • Non-discrimination provisions that protect people of all genders from discrimination in health care.

Take a step back absorb how much this decision affect.  Most of these reforms have nothing to do with the insurance-purchase mandate the judge opined was so central to the entire 2,000+ pages of the A.C.A. that nothing in those pages could function without it. But more importantly, Congress never said a thing about eliminating all of these provisions-- indeed, Congress failed more than 50 times in attempts to repeal them. Congress only eliminated the mandate penalty, leaving the rest of the law still standing. As we have explained, the legal test at issue turns entirely on what Congress intended.  The judge’s opinion effectively repeals the entire A.C.A. when Congress couldn’t and didn’t. 

The A.C.A. affects all Americans, not just those with lower incomes.  Most of us have employer coverage and have also benefited from the law.  Most of us, with some luck, will be on Medicare and would benefit from the A.C.A’s payment reforms and expanded drug coverage.  Many of us will need the biologic drugs, or the mental health services, maternity converge or cancer screening or vaccines that the A.C.A. makes accessible. 

Of course, Friday’s decision will certainly be appealed and so the court’s ruling is not the final word. And the effects of the decision are most likely to be paused while any appeal is pending, so the devastating implications of the decision laid out here are not immediate, and hopefully will never come to pass.

As Adler and I wrote, an opinion with these kinds of vast human consequences based on anything other than rock-solid legal ground is not just irresponsible; it is contrary to the rule of law.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

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