Harris Is Right. Trump Is Coming For The ACA Next Month.

Evasive and frequently interrupting at the vice-presidential debate on October 7, 2020, Vice President Mike Pence usurped Susan Page’s role as moderator, asking Senator and vice-presidential candidate Kamala Harris about court-packing. Many seemed to focus on the substance of Pence’s question and missed his deflection entirely as he avoided the real question posed to him by Page about the Trump Administration’s repeated attempts to end protections for pre-existing conditions.

Harris did answer the question posed by Pence by raising the court-packing by Republicans during Trump’s term. According to Pew Research, Trump, with the aid of Majority Leader Mitch McConnell (R-KY) has appointed one out of four of all sitting federal judges and more than any other president in history at this point in his term.

This Republican court-packing, of course, culminates in the nomination of Amy Coney Barrett to the Supreme Court, to fill Justice Ruth Bader Ginsberg’s still-warm seat against her dying wish. So even Pence’s deflection away from the ACA brings us right back to the ACA.

Barrett has previously criticized the ACA as outside the scope of Congress’ powers, and wrote of the 2012 Supreme Court decision, NFIB v. Sebelius, which upheld the law:

“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.”

Surely, given precedent, Barrett will uphold the law of the land? It depends on which version of her ends up on the Trump-loaded bench if confirmed. Barrett said:

“If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.”

Reassuring. Barrett also said, in some serious legal doublespeak making it unclear if it’s a good thing or a bad thing:

“Leaving room for new majorities to overrule old ones allows changed membership to change what the Court says the Constitution means.”

Less reassuring. And once again, Barrett said:

“In the Supreme Court, (adhering to precedent) is a soft rule; the Court describes it as one of policy rather than as an ‘inexorable command.”

Same question, three separate answers. Which should leave no one secure about the future of health insurance coverage. With California vs. Texas, in which Republicans again challenge the individual mandate of the ACA, set before the Court on November 10, 2020, Barrett, already critical of the mandate, could deal the ACA, along with millions who rely on the act for coverage, a fatal blow.

Pence may have successfully avoided the debate question about pre-existing conditions and pulled many in the media happily along for the change of subject, but the reality remains Republicans have tried to repeal the ACA 70 times. While Republicans claim they have a replacement for the ACA and will protect pre-existing conditions, it’s nothing more than a lie. The end of the ACA means the end of a host of benefits, as Harris spelled out clearly:

If you have a pre-existing condition, the Trump administration is coming for you. pic.twitter.com/mf6fux03nR

— Kamala Harris (@KamalaHarris) October 8, 2020

And with a confirmation hearing for Barrett looming, it’s time to focus on what is at stake. Here’s what the end of pre-existing condition protections mean, what the world was like without the coverage, and the case that can take us right back there.

California vs. Texas and the possible end of the ACA

A collective of 20 states, led exclusively by Republicans, sued to end the ACA after the dozens of failed attempts in Congress. Two individuals from Texas, claiming they’re overburdened by the requirement they buy health insurance, have joined the suit. The Tax Cuts and Jobs Act (TCJA) passed by Republicans and Trump, which, despite Pence’s claims, dished up huge rewards to corporations and the wealthy, not working people, also took a sideswipe at the ACA.

The TCJA set the fine that individuals would pay for not having coverage to nothing, and now these Republicans argue, essentially, the mandate no longer a tax under Congress’ constitutional taxing power. From the Kaiser Family Foundation (KFF):

“The Supreme Court has agreed to review four legal questions in the case. First, the Court will consider whether Texas and the individual plaintiffs have standing to bring the lawsuit to challenge the individual mandate. If so, the Court will determine whether the TCJA rendered the individual mandate unconstitutional. If the mandate is unconstitutional, the Court will decide whether the rest of the ACA can survive. Finally, if the entire ACA is held invalid, the Court will resolve whether the entire law should be unenforceable nationwide or whether it should be unenforceable only to the extent that provisions injure the individual plaintiffs.” [emphasis in original.]

The federal government’s–meaning the Trump Administration’s–position has changed a number of times during the litigation. The Administration did, however, ask the trial court to get rid of, in addition to the individual mandate, the ACA’s protection for pre-existing conditions.

Pre-existing conditions before the ACA

Over 100 million people have a pre-existing condition, a number likely to increase with widespread COVID-19 infections due to the coronavirus pandemic Trump mishandled. What is a pre-existing condition and how are they affected by the ACA? Let’s let health insurer Cigna cover that one:

“A pre-existing condition is typically one for which you have received treatment or diagnosis before you enrolled in a new health plan. Prior to 2010 and the passage of the Affordable Care Act (ACA), an insurance company would review your application for enrollment and if they determined you had a pre-existing condition, could deny you coverage or offer coverage at inflated rates.

“The ACA made it illegal for health insurance companies to deny you medical coverage or raise rates due to a pre-existing condition.”

Before the passage of the Act, anyone seeking an individual health insurance policy had to submit to an interview with an insurer, and the insurer could decide on rates or deny coverage entirely based on the interview. According to surveys prior to the ACA:

“…36 percent of those who tried to purchase health insurance directly from an insurance company in the individual insurance market were turned down, were charged more, or had a specific health problem excluded from their coverage. Another survey found that 54 percent of people with individual market insurance were worried that their insurer would drop their coverage if they got really sick.” [citations omitted.]

While people with plans through their employers fared slightly better, a change in circumstances, like a divorce or loss of job, could hurl a person into that individual market, and make them subject to the pre-existing condition exclusions. And those exclusions didn’t only apply to serious or chronic conditions like diabetes, asthma, heart disease, cancer, and now COVID-19.

Before Obamacare, insurers called acne a pre-existing condition. Pregnancy could also be a reason to deny coverage, and individual plans didn’t offer maternity coverage; instead, women would have to buy a rider, if they could get it.

Many insurers–including employer-based plans–had lifetime and yearly caps on coverage, limiting how much the plan would pay out. The ACA ended these caps, a change dramatically illustrated by Vox, who talks about Timmy and the end of his parents’ $1 million lifetime limit on coverage:

“This Obamacare provision took effect September 23, 2010. Timmy was born September 29. On December 17, he surpassed $1 million worth of bills in the neonatal intensive care unit. He didn’t leave the NICU until he was 6 months old.”

Vox points out that all told, Timmy’s bills exceeded $2 million, and were covered by his parents’ insurance. Without the ACA, they would not have been, and Timmy, as a sick infant, would have been uninsurable. And Timmy’s parents, like so many before them, may have faced a medical bankruptcy.

Medical bankruptcies before the ACA

In 2017, a study found personal bankruptcies declined by half after the passage of the Affordable Care Act. Jim Molleur a bankruptcy attorney, told Consumer Reports:

“We’re not getting people with big medical bills, chronically sick people who would hit those lifetime caps or be denied because of pre-existing conditions. They seemed to disappear almost overnight once ACA kicked in.”

Prior to the ACA, 60% of bankruptcies were due to medical bills. A recent study cited by CNBC claims the percentage may have increased slightly under the ACA, but pay close attention to the numbers and how they’re presented.

In 2010, more than 1.5 million people filed for bankruptcy. If 60% of those bankruptcies were due to medical bills or medical income loss, that affected nearly 923,000 people. CNBC says about 530,000 people file for bankruptcy per year; bankruptcy court filings put that number higher, at about 750,000 in 2019. Even at CNBC’s increased rate of 66.5% for bankruptcies due to medical bills and medical loss of income, that gives us about 499,000 people with such bankruptcies, or just over half of what it was in 2010.

But let’s break it down a little further. Along with medical bills, the numbers lump in bankruptcies because of loss of income due to medical issues, which is an issue outside of the scope of the ACA. The ACA would have no effect on those bankruptcies.

Additionally, there’s no indication of the age of the debt people sought to discharge in bankruptcy; we cannot know if the debt was incurred prior to the protections of the ACA. Medicaid expansion under the Act also affects bankruptcy rates. Researchers estimated the first two years of Medicaid expansion prevented 50,000 bankruptcies while increasing credit scores.

Low-income Americans in states that refused expansion face a much more bleak economic picture and a gap in coverage. About 2 million people earn more than the state Medicaid ceiling, yet do not meet the income requirements to get tax credits for their premiums, leaving people in states that refused expansion in a precarious position without coverage.

Still, even with the conflation of data and people left out of medical coverage by their state governments, it’s a vastly, vastly different world since President Obama and Congress passed the Affordable Care Act. And the fact remains bankruptcies have declined since 2010, the year the ACA went into effect. That may change now, though, in the aftermath of Trump’s COVID pandemic.

The Rantt Rundown

No wonder Pence avoided answering the question about pre-existing conditions, given his administration’s active attempts to end that protection in Texas. It also brings us back, sharply, to Barrett’s criticism of Chief Justice Roberts’ decision in Sebelius. If the fee is set to zero, does that allow her to sidestep the question of precedent entirely?

The political games of “look over here” amuse the pundits and fill our feeds with shiny things, but lives, literal lives not metaphorical lives, depend upon the ACA’s continued existence. People with pre-existing conditions, without the ACA, were trapped in a medical haunted house with a jump scare around every corner.

All Americans, even those with employer-based insurance, have greatly benefited from the end of lifetime and yearly caps. The steady decline in bankruptcies tells a vivid tale; as does the drop in bankruptcies in the states that have expanded Medicaid.

There are few subjects that get the eyes aglaze quite like health insurance, and that, precisely, is the point. It’s easy to just jump for the much more enlivening idea of court-packing. Nonetheless, while hearings on Barrett are likely to heavily feature the threat she poses to Roe v. Wade, remember the party that unironically refers to itself as “pro-life” actively wants to take away your coverage.