//  5/1/17  //  Commentary

Once again, the House Republican leadership has resurrected the American Health Care Act (AHCA), their attempt to repeal core provisions of the Affordable Care Act (ACA, or Obamacare) and fundamentally overhaul our nation’s health care system. The bill has seemed to die and be resurrected a number of times now, earning it the nickname “Zombie Trumpcare.” This week, I’ll blog about different aspects of the health care reform process.  I'll attempt to illuminate the roles that different legal actors–including the President, HHS Secretary Tom Price, and Congress–are playing in the advancement and implementation of health care reform.

But today and part of tomorrow, I want to start with the basics. What is the AHCA, what would it do – and why is health care so complicated? 

I’ll illustrate with an example.  One of the most hotly debated parts of health care reform has been something called “guaranteed issue” – the idea that health insurers must offer plans to individuals with pre-existing conditions.  Before Obamacare, insurers could refuse to provide insurance to applicants with pre-existing conditions, and many Americans went without necessary care as a result.  The Kaiser Family Foundation suggests that 27% of Americans have such pre-existing conditions and could be denied care if we were to return to the pre-Obamacare world.

This aspect of Obamacare has always been one of its most popular, with 2016 surveys placing support for the guaranteed issue requirement at 75% among Democrats and even 63% among Republicans.  The idea that someone could be permanently uninsurable because they had the misfortune to be borne with a condition like cerebral palsy or hemophilia, or because they suffered a bout of cancer, is no longer acceptable in the United States. 

And the GOP establishment has come around, with their FAQ about the AHCA stating that “[o]ur plan ensures that all Americans cannot be denied coverage on the basis of their medical conditions.”  Indeed, section 137(b) of the AHCA states that “[n]othing in this Act shall be construed as permitting health insurance issuers to limit access to health coverage for individuals with preexisting conditions.”  President Trump recently insisted that Americans with pre-existing conditions will be protected under his health care bill. 

Here’s the problem: it's meaningless to say that the Act protects people with pre-existing conditions if insurers can charge those people whatever they want.  Obamacare didn’t just tell insurers that they had to offer insurance plans to people with pre-existing conditions.  It also told them that they had to charge sick people the same premiums that it charged healthy people.  This is called “community rating,” and the interaction of these two provisions is key to understanding the situation in which the GOP now finds itself.

President Trump’s health care bill does not include community rating.  As a result, insurers must offer plans to individuals with pre-existing conditions.  But they can offer them on wildly different terms, charging people with pre-existing conditions many, many times what they charge healthier individuals.  The Center for American Progress has attempted to quantify the effect on a number of these conditions, and I’d encourage you to go look up the estimates for your own state.  I live in Missouri, where under Trump’s bill a 40-year-old woman who has previously had breast cancer could be charged $30,000 more in premiums alone each year as compared to a similar woman who has not had breast cancer.  For reference, our state’s per capita income is less than $20,000. 

When coupled with the much less generous tax subsidies envisioned in the AHCA, it's no wonder that the CBO suggests Trumpcare will likely lead to 24 million Americans losing their insurance over the next decade.  As Sarah Kliff put the issue for Vox after the President’s interview on Face the Nation yesterday, “Either the president doesn’t understand the proposal – or isn’t telling the truth about it.” 

I think the President and many House Republicans are in the first camp – after all, “nobody knew health care could be so complicated.”  (Daily reminder: basically everyone knew that.)  However, I also think some Republicans do understand this relationship between guaranteed issue and community rating – and are purposefully obfuscating the question.

Health care reform is hard work.  It takes time, effort, and attention to detail.  Small drafting mistakes can lead to enormous implementation problems later on.  But Trumpcare’s backers have an obligation to be honest about what they are voting for and what they are doing.  If you do not believe as an ideological matter that people with pre-existing conditions should be charged the same as healthy people, then say so.  But do not pretend – and most definitely do not “guarantee” – that people with pre-existing conditions will be protected under the GOP plan.  That simply isn't true. 

Tomorrow, I continue this theme, looking at key provisions of the actual bill versus the bill the President seems to think is being considered.  In that post, I revisit the ACA's conservative roots to explain why this process has been so difficult for the GOP.

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

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care