tag:theconversation.com,2011:/us/topics/individual-mandate-30731/articlesindividual mandate – The Conversation2020-11-12T18:54:41Ztag:theconversation.com,2011:article/1498912020-11-12T18:54:41Z2020-11-12T18:54:41ZWhile the Supreme Court deliberates on the Affordable Care Act, Congress and the White House may act<figure><img src="https://images.theconversation.com/files/369114/original/file-20201112-19-fsz4la.jpg?ixlib=rb-1.1.0&rect=0%2C85%2C4757%2C2990&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Demonstrators hold up pro-Affordable Care Act signs outside the U.S. Supreme Court as it hears oral arguments that challenge the Affordable Care Act in Washington on Tuesday, Nov. 10, 2020. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/demonstrators-hold-up-pro-affordable-care-act-signs-outside-news-photo/1229565178?adppopup=true">Caroline Brehman/CQ-Roll Call, Inc via Getty Images</a></span></figcaption></figure><p><a href="https://www.washingtonpost.com/politics/2020/11/10/scotus-hearing-aca-live-updates/">For the third time in a decade</a>, the U.S. Supreme Court has heard oral arguments on the constitutionality of the Affordable Care Act. The case of California v. Texas, heard on Nov. 10, is its most recent major legal challenge. </p>
<p>Taking place eight days after Justice Amy Coney Barrett’s <a href="https://www.nytimes.com/2020/11/02/us/politics/amy-coney-barrett-supreme-court.html">first Supreme Court case</a> and seven days after the 2020 election, Tuesday’s hearing <a href="https://www.nytimes.com/2020/11/02/us/politics/amy-coney-barrett-supreme-court.html">focused on</a> the ACA’s individual mandate, the requirement that most people need to have health insurance. After Congress “<a href="https://www.nytimes.com/2017/12/18/us/politics/tax-cut-obamacare-individual-mandate-repeal.html">zeroed out</a>” the mandate’s penalty in 2017, the challengers are arguing that the mandate is no longer constitutional under Congress’ tax-and-spend authority and must be struck down. </p>
<p>In the case, the court considered whether the individual plaintiffs and the challenging states had standing to sue, whether the “zeroed-out” individual mandate provision was constitutional and whether, if unconstitutional, that provision was severable from the rest of the law. It will likely be spring, and could be early summer, before we hear of the court’s decision.</p>
<p>As a <a href="https://law.utk.edu/directory/zack-buck/">health law professor</a> who <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1713816">focuses on health care finance and delivery</a>, I think it is important to ask, in addition to the legal arguments and tea-leaf reading of California v. Texas, what is next for the law and American health care policy?</p>
<h2>Reading tea leaves from the oral arguments</h2>
<p>Health care policy and legal experts are closely watching because the advancing litigation has mounted yet another existential threat against the ACA. This challenge was made more menacing when the Trump administration made clear that it was <a href="https://www.nytimes.com/2020/06/26/us/politics/obamacare-trump-administration-supreme-court.html">pushing for the invalidation of the entire law</a> – not just the individual mandate – in a June 2020 brief. </p>
<p>Yet different scholars, those both supportive and unsupportive of the ACA, have noted that the challengers’ legal arguments are “<a href="https://reason.com/volokh/2018/06/11/the-clever-red-state-lawsuit-against-the/">unworthy</a>,” “<a href="https://reason.com/volokh/2020/11/10/thoughts-on-todays-oral-argument-in-california-v-texas-the-obamacare-severability-case/">very weak</a>” and “<a href="https://www.theatlantic.com/ideas/archive/2019/07/texas-v-us-rise-know-nothing-judge/593959/">ridiculous</a>.”</p>
<p>During the hearing Nov. 10, it appeared that Chief Justice Roberts and Justice Kavanaugh, two very important potential swing votes, <a href="https://news.bloomberglaw.com/us-law-week/supreme-court-shaped-by-trump-poised-to-hear-challenge-to-aca">were skeptical</a> of the challengers’ legal arguments, particularly on the issue of severability, which allows for courts, if striking down part of a law, to “sever” and excise the unconstitutional part, leaving the rest of the law intact. </p>
<p>If the court were to find the ACA severable, then even a holding that the individual mandate was unconstitutional would not invalidate the entire law. <a href="https://www.politico.com/news/2020/11/10/supreme-court-obamacare-kavanaugh-435711">Arguments these two justices made</a> during their questioning of the litigants seemed to suggest this exact point. </p>
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<h2>Life, and enrollment, go on</h2>
<p>Regardless of the decision, it is likely months away. Previous ACA-related decisions have been handed down near the very end of the court’s term in late June, and there is no reason to think that this time will be different. That means that, over the next few months, the risk of judicial disruption to the inner workings of the ACA is minimal. </p>
<p>And, importantly, ACA open enrollment <a href="https://www.healthinsurance.org/open-enrollment/">has begun</a>. This is the period during which individuals can sign up for qualified health plans on healthcare.gov for 2021 coverage. The period runs through Dec. 15, 2020. </p>
<p>During last year’s open enrollment period, <a href="https://www.healthaffairs.org/do/10.1377/hblog20200402.109653/full/">11.41 million consumers</a> selected ACA-compliant marketplace insurance plans, which was <a href="https://www.healthaffairs.org/do/10.1377/hblog20200402.109653/full/">down 0.3% from 11.44 million consumers</a> for 2019. According to the Kaiser Family Foundation, both of these numbers are down from the high of <a href="https://www.kff.org/health-reform/state-indicator/marketplace-enrollment/?currentTimeframe=4&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D">12.68 enrollees in 2016</a>.</p>
<p>Most consequentially, the ACA will still largely be subject to political wrangling. The incoming Biden administration has indicated a desire to <a href="https://www.washingtonpost.com/health/biden-health-insurance-plan/2020/11/10/10570b3e-22b3-11eb-8672-c281c7a2c96e_story.html">build on the Affordable Care Act</a>. But this is where things get tricky.</p>
<figure class="align-center ">
<img alt="Rev. Raphael Warnock and John Ossoff talk on a campaign stop." src="https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/369147/original/file-20201112-23-1cd5b55.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Democrats Rev. Raphael Warnock, left, and John Ossoff are in runoffs for two very important Georgia Senate seats that could affect health care access for the entire country.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020SenateGeorgia/4959f8912e12473088ded8057c6b45f3/photo?Query=warnock%20and%20ossoff&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=9&currentItemNo=4">Brynn Anderson/AP Photo</a></span>
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<h2>Georgia on everyone’s mind</h2>
<p>Whether the Biden administration can make bigger structural changes, like adding a public option to the ACA (which is part of President-elect Biden’s <a href="https://joebiden.com/healthcare/">health care plan</a>), is likely to be a heavy lift. With Senate races in Alaska and North Carolina now being projected, Republicans are likely to occupy <a href="https://thehill.com/homenews/campaign/523484-sullivan-wins-reelection-in-alaska-senate-race">50 seats</a> in the Senate, compared to the <a href="https://www.nytimes.com/2020/11/10/us/politics/senate-results.html">48 seats</a> occupied by the Democratic caucus (including the two independent senators who caucus with Democrats), with two races outstanding. </p>
<p>This means that the two Georgia runoffs, between Jon Ossoff and Sen. David Perdue and between Rev. Dr. Raphael Warnock and Sen. Kelly Loeffler, will determine control of the Senate. Should these seats be won by Ossoff and Warnock in January, Democrats would control a chamber that is split 50-50 thanks to the <a href="https://www.newsweek.com/how-georgia-could-give-democrats-control-senate-kamala-harris-vp-1544998">tiebreaking vote provided by Vice President-elect Kamala Harris</a>. This would give President-elect Biden a better chance to push for structural legislative reform to the ACA, like a public option, assuming he can hold all 50 votes. Indeed, the future of American health care policy runs right through Georgia.</p>
<p>Importantly, this outcome would also give Biden and the Democratic-controlled Congress the ability to pass a “<a href="https://www.vox.com/21549641/obamacare-supreme-court-case-amy-coney-barrett-california-texas-biden-departmentalism">legislative fix</a>,” which could largely moot California v. Texas. This could include <a href="https://www.nytimes.com/2020/11/08/us/obamacare-aca-supreme-court.html">repealing the individual mandate from the ACA</a>. As a result, the Georgia Senate races are all the more consequential if the Supreme Court strikes down the ACA.</p>
<h2>Administrative fixes</h2>
<p>Whether or not the Senate falls into Democratic control, the Biden administration can still use executive authority once in office to make changes to the ACA, just as President Trump has done. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>This could include bolstering enrollment periods and support for ACA-compliant insurance plans to <a href="https://www.nytimes.com/2017/10/09/us/politics/obamacare-trump-cuts-open-enrollment.html">reverse Trump cuts</a>, changing the <a href="https://www.govinfo.gov/content/pkg/FR-2018-10-24/pdf/2018-23182.pdf">guidance and approval standards for state waivers</a> under the ACA and reinterpreting anti-discrimination provisions within the ACA to reinstate protections that were <a href="https://www.nytimes.com/2020/06/12/us/politics/trump-transgender-rights.html">ended by the Trump administration</a>, just to name a few.</p>
<p>Though the arguments are over, the battle over the future of the ACA will continue to be waged – both within the executive branch in Washington and in the political arena in Georgia – even while we await the decision from the Supreme Court on its most recent existential threat.</p><img src="https://counter.theconversation.com/content/149891/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zack Buck does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ACA’s third date with the Supreme Court was Nov. 10, and it will be months before a decision. In the meantime, however, Congress and the new president can do things to bolster the law.Zack Buck, Associate Professor of Law, University of TennesseeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1291772019-12-20T13:58:03Z2019-12-20T13:58:03ZHow undoing ‘Obamacare’ would harm more than the health of Americans<figure><img src="https://images.theconversation.com/files/308032/original/file-20191219-11924-t9vxrq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Open enrollment for health care in the ACA marketplaces ended at 3 a.m., Dec. 18, 2019, the same day a panel ruled that the individual mandate is unconstitutional. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Health-Overhaul-Sign-ups/ae96fdf686024e5c98d82274f5501b67/1/0">Centers for Medicare and Medicaid Services/AP Photo</a></span></figcaption></figure><p>The Affordable Care Act remains on life support after a <a href="https://www.cnn.com/2019/12/18/politics/obamacare-appeal-ruling/index.html">panel of federal judges ruled</a> on Dec. 18, 2019 that the law’s individual mandate requiring people to buy health insurance is unconstitutional.</p>
<p>The decision hobbles the law in ways that are hard to predict politically, particularly in the upcoming election year. It also raises questions for the <a href="https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/">20 million people who gained coverage</a> in the marketplaces and all Americans who gained protections through the ACA. </p>
<p>The ACA’s <a href="https://www.healthcare.gov/fees/fee-for-not-being-covered/">individual mandate</a> is a foundation of the law. Experts argued that the mandate was the only way to <a href="https://theconversation.com/doj-efforts-to-kill-obamacare-the-cat-with-9-lives-could-cause-health-care-havoc-for-millions-114352">bring healthy people into an insurance pool</a>. That is important to allow insurers to spread the costs among a broad mix of people, not just the sick. It served as a crucial bargaining chip for the Obama administration in bringing insurers on board to support health care reform a decade ago.</p>
<p>As a <a href="https://scholar.google.com/citations?user=QY68LSIAAAAJ&hl=en">political scientist and policy scholar</a> who has extensively studied the ACA, I am naturally concerned about the immediate and long-term implications of potentially undoing it. More generally, I am troubled that the ruling portends the undoing of policies supported by a broad coalition of Americans.</p>
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<img alt="" src="https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308033/original/file-20191219-11929-1wxesm3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Obamacare allows young adults to stay on their parents’ insurance until age 26.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/happy-senior-mature-mother-embracing-young-1231591432">fizkes/Shutterstock.comr</a></span>
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<h2>The far-reaching effects of the ACA</h2>
<p>The <a href="https://theconversation.com/us-health-care-system-a-patchwork-that-no-one-likes-85252">U.S. health care system is inherently perplexing</a>, as is “Obamacare.” A recent poll suggested that as many as <a href="https://www.nytimes.com/2017/02/07/upshot/one-third-dont-know-obamacare-and-affordable-care-act-are-the-same.html">one-third of Americans</a> don’t know that Obamacare and the ACA are the same. </p>
<p>As a result, most major reform efforts that build upon it are <a href="http://www.milkenreview.org/articles/life-and-politics-beyond-the-affordable-care-act">necessarily complex</a>. And because of the inherent partisanship of the U.S. electoral system, opposing parties have <a href="https://theconversation.com/us-health-care-system-a-patchwork-that-no-one-likes-85252">strong incentives to misrepresent and further add to the confusion</a>. The <a href="https://doi.org/10.1111/j.1541-0072.2012.00446.x">ACA</a> serves as a case in point.</p>
<p>Most public attention of the ACA has focused on its insurance coverage expansions. Yet, it has done significantly more than expand insurance coverage to millions; all Americans have benefited. </p>
<p>The <a href="https://doi.org/10.1111/puar.12065">insurance marketplaces</a> have allowed tens of millions of Americans to buy health insurance. <a href="https://doi.org/10.1215/03616878-2882219">Expansion of the Medicaid program</a> extended coverage to millions of poor adults. The ACA allows children to stay on their parents’ insurance until they are 26.</p>
<p>The ACA filled in the infamous <a href="https://www.kff.org/medicare/fact-sheet/an-overview-of-the-medicare-part-d-prescription-drug-benefit/">Medicare Part D donut hole</a> that provided hardship to many retirees and improved the long-term <a href="https://doi.org/10.1111/j.1541-0072.2012.00446.x">fiscal health of the entire Medicare program</a>. It also included protections and support for <a href="https://www.kff.org/health-reform/fact-sheet/summary-of-the-affordable-care-act/">breastfeeding mothers</a> and <a href="https://www.kff.org/health-reform/fact-sheet/summary-of-the-affordable-care-act/">added calorie counts to menus</a> to support healthier life choices.</p>
<p>But also, the ACA added crucial protections for virtually every American. These included the ability to obtain insurance despite suffering from <a href="https://theconversation.com/how-pre-existing-conditions-became-front-and-center-in-health-care-vote-77138">pre-existing conditions</a>, coverage for a <a href="https://theconversation.com/essential-health-benefits-suddenly-at-center-of-health-care-debate-but-what-are-they-75125">minimum number of essential benefits</a> and doing away with <a href="https://theconversation.com/how-the-latest-effort-to-repeal-obamacare-would-affect-millions-84317">annual and lifetime coverage limitations</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308034/original/file-20191219-11924-aicbyi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Mike Hewitt, a contractor in Austin, Texas, said he was grateful for Obamacare because it provided coverage and treatment for injuries he sustained after he fell off a roof.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Health-Overhaul-Sign-Ups/f140d67d338f4576a1b744a09a79ded4/27/0">Eric Gay/AP Photo</a></span>
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<h2>What does the recent ruling mean?</h2>
<p>The <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">most recent lawsuit</a> originated after Congress essentially repealed the penalty associated with individual mandate as part of the 2017 tax overhaul. Congress left intact the requirement that all Americans obtain insurance coverage, but it reduced the penalty for failing to comply with this requirement to zero. That made the requirement unenforceable.</p>
<p>A slew of Republican governors and attorneys general took advantage of this change to argue that this rendered the ACA’s individual mandate unconstitutional because it no longer could be justified as a tax. Many experts agree that this lawsuit, <a href="https://www.theusconstitution.org/litigation/texas-v-united-states/">Texas v. United States</a>, should not have advanced through the court system <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">for a variety of reasons</a>.</p>
<p>Nonetheless, a <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">federal court judge agreed</a> with the plaintiffs and declared the individual mandate unconstitutional in December 2018.</p>
<p>He even went a step further, invalidating the ACA in its entirety. He argued that the individual mandate served as the core feature of the ACA, making it <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">inseverable from the rest</a>, in legal terms. That is, if one provision of a statute is found to be unconstitutional, the entire statute must fall.</p>
<p>A <a href="https://affordablecareactlitigation.files.wordpress.com/2019/04/5c-adler-bagley-gluck-somin-amicus.pdf">large number of ideologically diverse experts disagreed</a> with the verdict and the underlying reasoning. A coalition led by California quickly appealed the verdict to the 5th Circuit Appeals Court.</p>
<p><a href="https://int.nyt.com/data/documenthelper/6610-obamacare-ruling/a6560c9831a0af845a00/optimized/full.pdf#page=1">The 5th Circuit Appeals Court</a> on Dec. 18, 2019 agreed with regard to the unconstitutionality of the individual mandate. The judges punted, however, on the crucial question of severability by tasking the original judge to reexamine what parts of the ACA should fall with it. </p>
<p>While the verdict left the ACA standing for now, it added potentially years of uncertainty. An ultimate showdown at the U.S. Supreme Court appears inevitable.</p>
<h2>A new consensus in health care?</h2>
<p>The <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">slew of litigation surrounding the ACA</a> tends to obscure an important development. While Democrats and Republicans have been slugging it out over health reform in Washington, D.C. and the courts, most Americans appear to have long moved on. The status quo in health care has shifted dramatically, and Americans, even if they despise Obamacare in the abstract, do not want to go back to 2009.</p>
<p>The numbers are startling. Virtually all <a href="https://www.kff.org/health-reform/poll-finding/6-charts-about-public-opinion-on-the-affordable-care-act/">crucial provisions of the ACA are supported by two-thirds of Americans</a>. These include the controversial <a href="https://doi.org/10.1111/puar.12065">insurance marketplaces</a>, <a href="https://www.cambridge.org/core/journals/journal-of-policy-history/article/inching-toward-universal-coverage-statefederal-healthcare-programs-in-historical-perspective/E94A03DD1F60F9DCBE3DDE9728DA3224">Medicaid expansion</a>, <a href="https://doi.org/10.1215/03616878-2882219">subsidies to assist lower income Americans to purchase insurance</a>, <a href="https://doi.org/10.1016/j.healthpol.2014.09.014">free preventive care</a>, <a href="https://theconversation.com/how-pre-existing-conditions-became-front-and-center-in-health-care-vote-77138">pre-existing condition protections</a> and requiring larger employers to provide insurance to their employees. Importantly, all of these provisions are also supported by <a href="https://www.kff.org/health-reform/poll-finding/6-charts-about-public-opinion-on-the-affordable-care-act/">close to 60% or more of Republicans</a>.</p>
<p>However, this new consensus has not made it into the hallways of Congress or the White House. Unable to push through a repeal, Republicans have focused on undoing as much as possible of the ACA <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">through a number of executive actions</a>. Yet they have been <a href="https://www.nytimes.com/2019/04/02/us/politics/obamacare-donald-trump.html">unable or unwilling to produce a coherent and comprehensive blueprint</a> for the future of the U.S. health care system.</p>
<p>More noteworthy is the series of <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">legal decisions</a> that have followed the ACA through the courts. </p>
<p>Unable to pass their agenda in Congress, extreme conservatives have made the transformation of the American judicial system a hallmark of their strategy to undo the modern American state and <a href="https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul">go back to the limited government of the pre-New Deal era</a>. They have been remarkably successful in <a href="https://www.vox.com/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges">filling America’s courtroom benches with conservative ideologues</a>.</p>
<p>I believe that Americans should be watching these developments. For many, they are out of line with the government and the policies they prefer. The ACA is just one case in point, but the well-being of millions of Americans are in the balance.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklysmart">You can get our highlights each weekend</a>. ]</p><img src="https://counter.theconversation.com/content/129177/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon F. Haeder is a Fellow in the Interdisciplinary Research Leaders Program, a national leadership development program supported by the Robert Wood Johnson Foundation to equip teams of researchers and community partners in applying research to solve real community problems.</span></em></p>Obamacare has been under siege since its passage in 2010. A ruling by a three-judge panel on Dec. 18 further chopped at the law by saying a key provision is unconstitutional.Simon F. Haeder, Assistant Professor of Public Policy, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1143522019-03-27T10:33:47Z2019-03-27T10:33:47ZDOJ efforts to kill Obamacare, the cat with 9 lives, could cause health care havoc for millions<figure><img src="https://images.theconversation.com/files/266004/original/file-20190326-139374-dd9569.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Speaker of the House Nancy Pelosi, D-Calif., announces legislation at the Capitol on March 26 to lower health care costs and protect people with pre-existing conditions.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Health-Care-Act/ee60a8cdd73945aa958c63f8cf988ceb/2/0">J. Scott Applewhite/AP Photo</a></span></figcaption></figure><p>If the Affordable Care Act, or Obamacare, were a cat, it would be just about out of its nine lives. </p>
<p>It is amazing that this law, which represented a sea change in how we provide care to almost everyone in the country, has survived all the challenges so far, including two cases before the Supreme Court and untold efforts by Republicans in Congress to overturn the law. </p>
<p>The move by the Trump administration on Monday, March 25, to basically say that the <a href="https://www.washingtonpost.com/politics/trump-surprises-republicans--and-pleases-democrats--with-push-to-revive-health-care-battle/2019/03/26/068cc2c4-4fd3-11e9-a3f7-78b7525a8d5f_story.html?utm_term=.c78d26f030e0">law should be thrown out</a> entirely, might be the final blow. </p>
<p>Here’s what happened. In December 2018, a <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">federal district judge</a> in Texas ruled that the individual mandate in the ACA, which requires people to buy health insurance or face a penalty, is unconstitutional. Judge Reed O'Connor then stretched to say that the <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">entire law is unconstitutional</a>. Many health policy experts <a href="https://theconversation.com/why-the-texas-ruling-on-obamacare-is-on-shaky-legal-ground-108884">shrugged off the ruling</a> as mere political maneuvering. The next decision is expected to come from a federal appeals court in New Orleans, possibly in the summer.</p>
<p>But the Trump administration tightened its stranglehold on March 25. The <a href="https://www.nytimes.com/2019/03/25/us/politics/obamacare-unconstitutional-trump-aca.html">Department of Justice</a>, which typically defends the law of the land, said it cared nothing about defending this law. In a <a href="https://www.documentcloud.org/documents/5781212-190235-DOJ-ACA-Lawsuit-Letter.html">two-sentence letter</a>, the DOJ said it would not urge “that any portion of the district court’s judgment be reversed.” </p>
<p>As a former CEO of a health insurance company and longtime researcher of this industry, I see trouble ahead not just for individuals but the vast network of companies that are part of the health care economy.</p>
<h2>An expensive system</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266006/original/file-20190327-139374-o2brri.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Health care spending in the U.S. is higher than in any other country, but millions receive excellent care.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doctor-discussing-records-senior-female-patient-126687980">Monkey Business Images/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>The U.S. <a href="https://www.modernhealthcare.com/article/20180407/NEWS/180409939/why-does-the-u-s-spend-so-much-more-on-healthcare-it-s-the-prices">spends more on health care</a> than any other country, has more highly paid professionals and better equipped facilities and, for the last few years, almost as much access as our peers. But the constant assault on the ACA has had its effect, especially on self-employed individuals and <a href="https://www.commonwealthfund.org/publications/issue-briefs/2018/oct/affordable-care-act-impact-small-business">small businesses</a>. </p>
<p>Both of these have seen increases in out-of-pocket costs that were completely due to legal and regulatory changes to the original act. It looks to me as if these changes were designed to drive this subgroup of job creators to the poorhouse and into the arms of politicians who never wanted this in the first place and would do whatever it took to eliminate it. </p>
<p>Insurance is all about risk: how to manage and spread it among all the parties so that each one is covered when the need arises. The “affordable” in the ACA was only about the out-of-pocket cost that each party could absorb after paying for essentials. The subsidies the law provided were designed to reduce the premium that competitive insurers had to charge to a net level of no more than 2 percent of disposable income for people at the poverty level and 9.5 percent at the top.</p>
<p>But that risk-sharing structure has fallen apart. Ongoing challenges in the courts, the federal government defaulting on what insurers were promised, cuts in marketing and assistance, and elimination of measures designed to get everyone in the pool <a href="https://www.kff.org/health-reform/press-release/2019-premiums-for-aca-silver-plans-will-be-16-percent-higher-than-they-would-have-been-absent-the-repeal-of-the-individual-mandate-expansion-of-short-term-plans-and-loss-of-federal-cost-sharing-payme/">have forced insurers to cover</a> their monumentally higher risks with much higher premiums.</p>
<p>To <a href="https://www.cbpp.org/blog/many-marketplace-consumers-eligible-for-zero-premium-coverage">low-income individuals</a>, this is hardly noticeable, since the subsidies from the government simply rose enough to cover the higher premiums. </p>
<p>But for <a href="https://khn.org/news/health-insurance-costs-crushing-many-people-who-dont-get-federal-subsidies/">higher-income people buying on the exchanges</a>, this has been disastrous. </p>
<p>In effect, the Republicans have made Obamacare look like an extended version of Medicaid with the poor protected by subsidies. But those with higher income had to bear the price for these changes through higher premiums not offset by subsidies. Congress also invited people to leave the exchanges by <a href="https://www.commonwealthfund.org/blog/2018/understanding-impact-elimination-individual-mandate-penalty">eliminating the tax</a> people would owe if they did not buy insurance. </p>
<p>While it may be laudable that the country still supports those with little means of payment, it is at the price of driving entrepreneurs and successful individuals out of the market.</p>
<h2>Danger ahead?</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266007/original/file-20190327-139349-15wqk99.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The ACA has been like a cat with nine lives, the author writes.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cute-sleeping-gray-domestic-cat-closeup-169542317">Katerina Maksymenko.</a></span>
</figcaption>
</figure>
<p>Now to add insult to injury, the Texas court has held that without the tax penalty <a href="https://www.commonwealthfund.org/blog/2018/understanding-impact-elimination-individual-mandate-penalty">eliminated by the recent cut in taxes</a>, the mandate requiring individuals to purchase coverage is void. The ruling is a logical extension of the debate about whether the government can compel a citizen to pay for health care plans.</p>
<p>But then to strike down the whole ACA is, in my opinion, an enormous reach that does damage far beyond concern over whether the exchanges are valid. </p>
<p>I believe there would be an uprising if people knew that this means that insurers can go back to <a href="https://www.hhs.gov/healthcare/about-the-aca/pre-existing-conditions/index.html">denying coverage for pre-existing conditions</a> and selling worthless plans to uninformed people; that the largest funding to address the opioid crisis, the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/puar.12065">Medicaid expansion</a>, would disappear; that their local hospital may have to close due to skyrocketing bad debts; and that individual bankruptcies would once again hit record levels as bill collectors return in force.</p>
<p>In addition, more subtle improvements in the way we provide health care would be in jeopardy. The <a href="https://innovation.cms.gov">Center for Medicare and Medicaid Innovation</a> has fostered major changes in how we organize care and improve quality through their payment incentives. The <a href="https://www.pcori.org/research-results/patient-centered-outcomes-research">Patient-Centered Outcomes Research Institute</a> that compares alternative treatment to see what is best would disappear. </p>
<p>And even the collection of quality measures that have let us see who is best and provided a guide to our choices would be in question. In other words, the wholesale elimination of the ACA would take us back to a more primitive time and place.</p>
<p>The Obamacare cat with nine lives may soon be gasping for breath. The ensuing chaos would be enormous to investors in health care businesses, suppliers to the industry, professionals and support staff of providers, medical schools and training programs and local businesses which depend on them.</p>
<p>But even worse would be the loss of almost 10 years of attention to the patient as the center of care and improved coordination that the ACA has fostered. I really don’t think we as a country want to go back. The price is far too high for a few political points that one side might score in the short term. As those who thought Brexit was a good idea are learning, disruptive change to a whole economic and social system is a very dangerous game to play.</p><img src="https://counter.theconversation.com/content/114352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>J.B. Silvers is A board member of MetroHealth in Cleveland, Ohio</span></em></p>Obamacare, while highly controversial, has been a tough law to kill. The efforts of a federal district judge in Texas had seemed yet another ineffective assault. Then came the DOJ’s actions Monday.J.B. Silvers, Professor of Health Finance, Weatherhead School of Management & School of Medicine, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1088842018-12-17T11:37:57Z2018-12-17T11:37:57ZWhy the Texas ruling on Obamacare is on shaky legal ground<figure><img src="https://images.theconversation.com/files/250816/original/file-20181216-185268-11x860f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Austin, Texas contractor Mike Hewitt, who depends on insurance provided by the Affordable Care Act. A Texas judge ruled Dec. 14, 2018 that the law is unconstitutional.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Health-Overhaul-Sign-Ups/f140d67d338f4576a1b744a09a79ded4/17/0">Eric Gay/AP Photo</a></span></figcaption></figure><p>A Texas judge has ruled that the Affordable Care Act is unconstitutional. For now, his decision has no immediate effect except to toss <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">another fire bomb</a> at a law that has helped 20-plus million people gain insurance and expanded insurance for almost all Americans by such things as requiring insurers to cover pre-existing conditions.</p>
<p>Based on our expertise as health policy scholars, we argue that the ACA is <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">well-settled law by now</a>. This ruling will likely not undo the law. It does, however, add more uncertainty to the ACA while also showing how much Republicans continue to be willing to fight to destroy the law.</p>
<h2>How did we get to the Texas verdict?</h2>
<p>Republicans in Congress spent much of 2017 seeking to <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">repeal and replace the Affordable Care Act</a>. After repeated failed attempts, they celebrated a victory with the passage of the <a href="https://www.congress.gov/bill/115th-congress/house-bill/1">Tax Cuts and Jobs Act of 2017</a>. The tax bill included the <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">repeal of the ACA’s individual shared responsibility penalty</a>, or the penalty imposed on individuals who fail to purchase qualified insurance coverage. </p>
<p>Health policy experts agreed that this would <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">destabilize the individual insurance market</a> without destroying the ACA. And indeed, enrollment in the ACA insurance marketplaces has been <a href="https://www.cnbc.com/2018/12/15/heres-how-trump-hobbled-obamacare-and-drove-enrollment-down.html">decidedly lower this year</a>. Yet, millions of Americans continue to enroll, and a number of states are <a href="https://theconversation.com/the-votes-have-been-counted-the-results-are-mostly-in-whats-next-for-health-care-106574">moving toward expanding Medicaid</a>.</p>
<p>Emboldened by the legislative success of GOP tax reform, however, <a href="https://www.texasattorneygeneral.gov/files/epress/Texas_Wisconsin_et_al_v._U.S._et_al_-_ACA_Complaint_(02-26-18).pdf">20 states</a>, led by Texas and Wisconsin, renewed their efforts to have the <a href="https://www.texasattorneygeneral.gov/files/epress/Texas_Wisconsin_et_al_v._i/10.1111/j.1541-0072.2012.00446.x/full">ACA declared unconstitutional</a>. </p>
<p>They got every wish. Texas Judge Reed O’Connor struck down the Affordable Care Act as <a href="https://www.nytimes.com/2018/12/14/health/obamacare-unconstitutional-texas-judge.html">unconstitutional in its entirety</a>. </p>
<p>Politics heavily shaped this case. Republican-led states sought a friendly judge in a Texas district court to yet again challenge the constitutionality of the ACA. And California took over the defense of the ACA when the Department of Justice refused to defend its own law.</p>
<p>While many experts anticipated that Judge O'Connor would rule against the ACA, legal experts from both sides of the aisle were <a href="https://thehill.com/policy/healthcare/421541-five-takeaways-from-the-court-decision-striking-down-obamacare">baffled by his legal reasoning and the departing from well-established legal precedent</a>. </p>
<h2>What’s in the verdict?</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/250817/original/file-20181216-185255-1eobmrp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Open enrollment for 2019 ended Dec. 15, 2018. A judge in Texas ruled on Dec. 14 that the ACA is unconstitutional.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/caldwell-idahousa-december-6-view-healthcare-166155479?src=9hfDxcnI-cTaNlo2y8-d5w-1-2">txking/Shutterstock.com</a></span>
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</figure>
<p><a href="https://oag.ca.gov/system/files/attachments/press-docs/211-texas-order-granting-plaintiffs-partial-summary-judgment.pdf?rel=0">Judge O’Connor’s opinion</a> addresses three issues: standing, constitutionality of the individual mandate, and a legal principle called severability – that is, should the rest of the ACA stand if the individual mandate is held to be unconstitutional.</p>
<p>First, O’Connor agreed with the plaintiffs that they have standing to bring this case. The plaintiffs argued that the individual mandate injures their constitutional rights by forcing them to buy health insurance.</p>
<p>Yet ironically, it is the elimination of the tax penalty that prompted this lawsuit. O’Connor suggested that people will feel nonetheless beholden to follow the law even without the penalty. We find the argument that an unenforced law can cause harm is absurd and merits serious reconsideration on appeal. </p>
<p>Next, O’Connor held that the individual mandate is unconstitutional. In <a href="https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf">NFIB v. Sebelius</a>, the Supreme Court upheld the individual mandate as a tax. With Congress reducing the individual mandate penalty to zero in the 2017 tax bill, the plaintiffs in the Texas case argue it no longer functions as such. </p>
<p>Yet, we think that once more Judge O'Connor ignored reasonable arguments. For one, California argued there are still ways in which the mandate functions as a tax, as some unpaid funds will still be collected in the future. Additionally, many related provisions of the ACA remain intact <a href="https://www.healthaffairs.org/do/10.1377/hblog20171220.323429/full/">such as hardship exemptions and reporting requirements</a>.</p>
<p>Moreover, the original rejection of the individual mandate in NFIB v. Sebelius was that it violated the commerce clause of the Constitution by coercing consumers. This may no longer be valid with the penalty being zeroed out.</p>
<p>This issue is, in some ways, the lowest stakes part of the case, as the new tax law ends the penalty (and effectively the individual mandate) on Jan. 1, 2019. But it does control whether the third issue – severability – arises. And, there is symbolic value in being allowed to say that no aspect of the ACA is unconstitutional. </p>
<p>Last, in what we consider the most drastic and overstepping aspect of the opinion, Judge O’Connor kills the entire ACA. Emphasizing how “essential” the mandate is to the law, he states that Congress would not want any of it to stand without the individual mandate. Yet, Congress did speak in 2017. It did not repeal the whole of the ACA when they effectively wiped out the individual mandate. It must have thought the rest of the ACA could stand without the mandate.</p>
<p>While important, the individual mandate also does not render the ACA completely worthless. The mandate, which had been used as the stick to enforce compliance, may be gone, but carrots like subsidies to purchase insurance remain and will keep many people in the insurance market. </p>
<h2>Wending its way to the Supreme Court?</h2>
<p>So what’s next? California has indicated that it intends to appeal the matter to the 5th Circuit Court (which covers Texas, Louisiana and Mississippi), but it is possible that Judge O'Connor may sit on the case for a period before this can happen. We believe that if the 5th Circuit is reasonable, it will overturn the verdict. </p>
<p>At the same time, <a href="https://www.baltimoresun.com/news/maryland/politics/bs-md-aca-lawsuit-20180914-story.html">another suit filed in district court in Maryland</a> asks that the ACA be deemed constitutional and that the complete law remain intact. </p>
<p>Actions of these two courts will determine whether there is sufficient uncertainty or danger to the ACA to merit the Supreme Court’s review. </p>
<p>Meanwhile, while heartburn medicine sales may have risen and Twitter has gone alight, in practice, nothing changes. Judge O’Connor did not issue any injunction to stop the enforcement of the ACA. And for now, the Trump administration has indicated that it will continue to enforce the law until ultimately settled. </p>
<p>Ultimately, the weakness of plaintiffs’ case means this litigation will likely end, whenever it does, with the ACA largely intact. But in the meantime uncertainty and confusion will reign, and <a href="https://read.dukeupress.edu/jhppl/article-abstract/43/2/271/133583">politicians will spin well-worn narratives that the ACA</a> is fundamentally flawed and unlawful. </p>
<h2>What if the ruling is upheld?</h2>
<p>If the ruling is ultimately upheld, and the ACA really is dead for good, the changes for the American health care system, and every American, would be dramatic.</p>
<p>Of course, most directly affected would be those Americans who obtained coverage through either <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/puar.12065">the Medicaid expansion or in the insurance marketplaces</a>. The popular provision that allows young adults to stay on their parents’ plan would also be undone. </p>
<p>Any large scale changes would cause dramatic harm to the entire U.S. health care system, and affect each and every American whether they rely on <a href="https://theconversation.com/us-health-care-system-a-patchwork-that-no-one-likes-85252">employer-sponsored insurance, other private insurance, or Medicaid and Medicare</a>.</p>
<p>Even eight years after the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1541-0072.2012.00446.x">its passage</a>, many Americans do not fully grasp the sheer reach of ACA provisions. Look no further than its more than a thousand pages as evidence of its depth and scope.</p>
<p>Gone would be relatively minor, albeit important, provisions like requiring fast-food restaurants to post calorie counts, reviewing insurance premium increases by regulators, and taxing tanning beds. </p>
<p>More crucially, gone would be protections for Americans with <a href="https://theconversation.com/how-pre-existing-conditions-became-front-and-center-in-health-care-vote-77138">pre-existing conditions</a>. Gone would also be provisions that <a href="https://www.degruyter.com/view/j/for.2013.11.issue-3/for-2013-0056/for-2013-0056.xml">eliminate annual and lifetime restrictions by insurers</a>, and the requirement for insurers to provide a <a href="https://www.sciencedirect.com/science/article/pii/S0168851014002607">minimum level of benefits</a> including mental health, substance abuse and emergency room services. </p>
<p>Gone would also be the <a href="https://www.cms.gov/apps/files/Medicarereport2012.pdf">filling of the Medicare Part D donut hole</a> that hurt many seniors. </p>
<p>Gone would be provisions that combat fraud and abuse in Medicaid and Medicare.</p>
<p>Gone would be provisions <a href="https://www.npr.org/sections/health-shots/2017/01/24/510668899/obamacare-repeal-threatens-a-health-benefit-popular-in-coal-country">for coal miners suffering from black lung and their survivors</a>.</p>
<p>Gone would be efforts to improve provider quality, medical innovation, and data collection efforts to reduce health disparities. </p>
<p>The list keeps going.</p>
<p>As <a href="https://theconversation.com/republicans-attacking-obamacare-one-more-time-92568">we stated before</a>, we believe the ACA should be settled law both in the courts of law and public opinion. It should also finally be settled in the court of politics. </p>
<p>In our view, this frivolous lawsuit and the equally frivolous ruling should not distract us from the serious work ahead in addressing the <a href="https://theconversation.com/us-health-care-system-a-patchwork-that-no-one-likes-85252">inadequacies of the American health care system</a>.</p><img src="https://counter.theconversation.com/content/108884/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon is a Fellow in the Interdisciplinary Research Leaders Program, a national leadership development program supported by the Robert Wood Johnson Foundation to equip teams of researchers and community partners in applying research to solve real community problems.</span></em></p><p class="fine-print"><em><span>Valarie Blake does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A judge in Texas ruled Dec. 14 that the Affordable Care Act is unconstitutional. His ruling has no immediate effect, however, except to signal more perils ahead for the health care law.Simon F. Haeder, Assistant Professor of Political Science, West Virginia UniversityValarie Blake, Associate Professor of Health Law, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/925682018-03-05T11:44:01Z2018-03-05T11:44:01ZRepublicans attacking Obamacare, one more time<figure><img src="https://images.theconversation.com/files/208554/original/file-20180301-152564-1aqj5i6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The landing page for 2018 enrollment on the ACA exchanges. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Health-Overhaul-Sign-Ups/bec8d6f4fd754bc299df49e43750ca47/9/0">AP Photo/Alex Brandon</a></span></figcaption></figure><p>Republicans in Congress spent much of 2017 seeking to <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">repeal and replace the Affordable Care Act</a>. After repeated attempts failed, they celebrated a victory with the passage of the <a href="https://www.congress.gov/bill/115th-congress/house-bill/1">Tax Cuts and Jobs Act of 2017</a>. While the tax bill left most of the ACA intact, it included the repeal of the ACA’s individual shared responsibility penalty, the penalty imposed on individuals who fail to purchase qualified insurance coverage. </p>
<p>That means the so-called individual mandate remains in the ACA but, beginning in 2019, individuals will no longer face a financial penalty if they choose not to purchase health insurance. </p>
<p>Health policy experts agree that this will <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">destabilize the individual insurance market</a>. With the ACA allowing people with <a href="https://theconversation.com/how-pre-existing-conditions-became-front-and-center-in-health-care-vote-77138">pre-existing conditions</a> to purchase health insurance at the same price as others, the individual mandate was a necessary <a href="https://www.degruyter.com/view/j/for.2013.11.issue-3/for-2013-0056/for-2013-0056.xml">counterbalance that encouraged healthy people to purchase insurance and stabilize premiums</a>.</p>
<p>Emboldened by the legislative success of GOP tax reform, <a href="https://www.texasattorneygeneral.gov/files/epress/Texas_Wisconsin_et_al_v._U.S._et_al_-_ACA_Complaint_(02-26-18).pdf">20 states</a> led by Texas and Wisconsin have renewed efforts to weaken and undo the <a href="https://www.texasattorneygeneral.gov/files/epress/Texas_Wisconsin_et_al_v._i/10.1111/j.1541-0072.2012.00446.x/full">ACA</a>. </p>
<p>We study health policy and health care law and have watched the attacks on the law. We believe this latest legal challenge will likely fail but can still damage the ACA and insurance markets by exacerbating the <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">uncertainty sown by actions of the Trump administration</a> as the states-led suit meanders through the courts over the next years.</p>
<h2>Death by a thousand cuts</h2>
<p>The ACA has been under attack since it was enacted, but these attacks have intensified <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">since the Trump administration took office</a> and even more since <a href="https://theconversation.com/how-the-latest-effort-to-repeal-obamacare-would-affect-millions-84317">congressional Republicans failed to repeal the ACA</a>.</p>
<p>Cumulatively, the attacks have significantly <a href="https://theconversation.com/how-the-tax-bill-opens-wide-a-big-back-door-to-overhaul-health-care-88624">weakened the law</a>. Yet the law has persisted for almost eight years. And the most recent polls indicate that <a href="https://khn.org/news/acas-popularity-grows-even-as-gop-lauds-change-to-requirement-to-have-coverage">the ACA has never been more popular</a>.</p>
<p>The Trump administration <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">reduced outreach and advertising</a>. It also ended <a href="http://www.modernhealthcare.com/article/20171013/NEWS/171019944">cost-sharing subsidies in October</a>. The administration also cut the <a href="https://www.healthaffairs.org/do/10.1377/hblog20170414.059663/full/">number of days for enrollment</a> to 45, significantly shorter than the first open enrollment. And, the <a href="https://www.pbs.org/newshour/health/obamacare-signup-site-shut-12-hours-nearly-every-sunday-open-enrollment">website was down many Sundays</a>, a popular day for enrollment. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208555/original/file-20180301-152587-hcssml.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Open enrollment in previous years went as long as five months, ending as late as March 31. Open enrollment for 2018 lasted 45 days and ended Dec. 15.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/caldwell-idahousa-march-9-2014-obamacare-199461719?src=RU58obF8LBHKtgZbwOf4KQ-1-5">txking/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>But still, almost <a href="http://acasignups.net/18/02/08/update-2018-aca-open-enrollment-final-total-11760533">12 million people enrolled</a> during the most recent open enrollment period. </p>
<h2>Major previous lawsuits</h2>
<p>Since its passage in March 2010, the ACA has seen <a href="https://read.dukeupress.edu/jhppl/article-abstract/40/2/281/13726">dozens of legal challenges</a>. The <a href="http://onlinelibrary.wiley.com/doi/10.1111/puar.12065/full">very day the ACA was signed into law by President Obama</a>, 26 states and others initiated the first major challenge to the ACA.</p>
<p>That lawsuit directly challenged the constitutionality of two core components of the ACA: the expansion of the Medicaid program and the requirement for individuals to purchase insurance or be subject to a fine. </p>
<p>Joining the court’s four liberal justices, Chief Justice John Roberts upheld the constitutionality of the individual mandate as a tax. However, he agreed with the plaintiffs that mandatory Medicaid expansion was unconstitutional.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=562&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=562&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208556/original/file-20180301-152569-uoacz8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=562&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice John Roberts during confirmation hearings in 2005. He shocked Republicans in 2012, when he ruled that Obamacare was constitutional.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/washington-dc-usa-september-13-2005-390482830?src=kmtrMWlgrmaGWuzWr5FTXw-1-1">Rob Crandall/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>The <a href="https://www.law.cornell.edu/supremecourt/text/11-393">verdict, on June 28, 2012</a>, <a href="https://read.dukeupress.edu/jhppl/article-abstract/40/2/281/13726">damaged but preserved the ACA</a>. Americans would be required to purchase insurance or face a penalty. </p>
<p>The expansion of the Medicaid program was left to the <a href="https://www.cambridge.org/core/journals/journal-of-policy-history/article/inching-toward-universal-coverage-statefederal-healthcare-programs-in-historical-perspective/E94A03DD1F60F9DCBE3DDE9728DA3224">discretion of the states</a>.</p>
<p>The next lawsuit took issue with the ACA’s requirement to provide certain forms of contraception to women. The Supreme Court sided with Hobby Lobby, Inc. in June 2014. </p>
<p>The court ruled that the ACA’s entire contraception mandate placed a substantial burden on closely held religious corporations. Various similar cases have been consolidated in <a href="https://www.supremecourt.gov/opinions/15pdf/14-1418_8758.pdf">Zubik v. Burwell</a>. That case was sent back the lower courts in 2016 and is still pending.</p>
<p><a href="https://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">King v. Burwell</a> and <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0623-67">Halbig v. Sebelius</a> challenged the legality of premium subsidies for individuals purchasing insurance coverage through the federal insurance marketplace. </p>
<p>On June 25, 2015, the Supreme Court sided with the Obama administration in upholding the subsidies in a <a href="https://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">6-3 decision</a>.</p>
<p>Finally, in late 2014, the U.S. House of Representatives filed suit against the Obama administration over delays implementing the employer mandate and the payment of so-called cost-sharing reductions. These are reimbursements for insurance companies for payments they are required to make under the ACA to assist qualified individuals purchasing insurance in the insurance marketplaces for their out-of-pocket expenses. </p>
<p>The courts only allowed <a href="http://www.scotusblog.com/wp-content/uploads/2016/05/HofR-challenge-to-ACA-DCt-5-12-16.pdf">U.S. House of Representatives v. Burwell</a> to move forward with regard to the cost-sharing reductions. However, the issue has become moot as the <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">Trump administration has refused further payments to insurance companies</a>.</p>
<h2>Relitigating the individual mandate</h2>
<p>With the repeal of the shared responsibility payment, the state attorneys general argue in their suit that the individual mandate is no longer a tax, and thus no longer constitutional.</p>
<p>The heart of the issue is what legal scholars call severability. When part of a law is deemed unconstitutional, courts must consider what should happen to the rest of the law – must it also be struck down or can it stand alone? </p>
<p>The Supreme Court previously was faced with this exact issue in the lawsuit filed in 2010. In its June 2012 ruling, the court rejected the Medicaid expansion as unconstitutional but still upheld the rest of the ACA. </p>
<p>This will be a critical question as courts hear this new legal challenge. If the individual mandate is now unconstitutional, then would Congress have still have wanted the remaining pieces of the ACA to persist? Alternatively, are there parts of the ACA that cannot stand without the individual mandate? This particularly applies to the insurance market reforms that came along with the individual mandate, <a href="http://www.healthpolicyjrnl.com/article/S0168-8510(14)00260-7/abstract">like the requirements to sell insurance to all comers and at the same rates</a>. </p>
<p>When the Roberts Court decided to <a href="https://www.law.cornell.edu/supremecourt/text/11-393">uphold the remainder of the ACA while making the Medicaid expansion optional</a>, the court stated that <a href="https://www.law.cornell.edu/supremecourt/text/11-393">“we have no way of knowing how many States will accept the terms of the expansion, but we do not believe Congress would have wanted the whole Act to fall, simply because some may choose not to participate.” </a></p>
<p>We believe this has particular resonance with the current legal challenge. It seems clear to us that Congress would not have wanted the whole law or its protections to fall for everyone just because some Americans would choose not to participate.</p><img src="https://counter.theconversation.com/content/92568/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Affordable Care Act has been under siege since it became law eight years ago. What impact will the latest lawsuit against it have?Simon F. Haeder, Assistant Professor of Political Science, West Virginia UniversityValarie Blake, Associate Professor of Health Law, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/886242017-12-05T04:07:59Z2017-12-05T04:07:59ZHow the tax bill opens wide a big back door to overhaul health care<figure><img src="https://images.theconversation.com/files/197683/original/file-20171204-23009-c5oo4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Majority Leader Mitch McConnell in a Nov. 30, 2017 photo as he talked to small business owners about the tax bill. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Congress-Taxes/81b0a4ec46e24eee91b2adf1385e2ff1/58/0">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>The U.S. Senate on Dec. 2 <a href="https://www.nytimes.com/2017/12/01/us/politics/senate-tax-bill-debate-vote.html?_r=0">passed its version</a> of <a href="http://www.factcheck.org/2017/11/trumps-claims-dont-add/">one of the most sweeping tax reform bills</a> on a party-line vote of 51-49. After reconciliation with a House version, the bill is expected to be passed into law by the end of the year.</p>
<p>The process and content of the legislation is largely reminiscent of the <a href="https://theconversation.com/how-the-latest-effort-to-repeal-obamacare-would-affect-millions-84317">previous efforts by Republicans to repeal the Affordable Care Act</a>: <a href="https://www.nytimes.com/2017/11/16/us/politics/house-tax-overhaul-bill.html">limited hearings</a>, limited analysis, limited participation and limited transparency. By providing various concessions, Senate Republican leadership was able to convince its <a href="http://thehill.com/homenews/senate/344270-mccain-votes-to-kill-gops-skinny-backup-obamacare-repeal-plan">three holdouts</a> <a href="https://theconversation.com/how-the-latest-effort-to-repeal-obamacare-would-affect-millions-84317">from the bill that would have gutted the Affordable Care Act</a> from earlier this year: Republican Senators John McCain of Arizona, Lisa Murkowski of Alaska and Susan Collins of Maine. “Tax reform” essentially morphed into the <a href="https://www.vox.com/health-care/2017/12/1/16725326/obamacare-mandate-tax-bill-voxcare">functional equivalent of this summer’s “skinny repeal</a>” version of “repeal and replace.”</p>
<p>As a professor of health policy, I see this “tax reform” as “health care reform” by another name. We may simply have seen the opening of the door for much more far-reaching efforts to transform American social programs over the coming years. </p>
<h2>Effects beyond Obamacare</h2>
<p>The most obvious effect of the Senate tax reform bill is the repeal of the <a href="https://www.cbo.gov/budget-options/2016/52232">individual mandate established by the Affordable Care Act</a>. The provision required most Americans <a href="http://onlinelibrary.wiley.com/doi/10.1111/puar.12065/full">to obtain insurance coverage or pay a fine</a> and has long been the most disliked component of the ACA.</p>
<p>While perhaps <a href="https://www.kff.org/health-reform/poll-finding/kaiser-health-tracking-poll-august-2017-the-politics-of-aca-repeal-and-replace-efforts/">the least liked part of the ACA</a>, the mandate serves as a crucial component to <a href="https://theconversation.com/how-the-latest-effort-to-repeal-obamacare-would-affect-millions-84317">stabilize insurance markets</a> around the country. It was crucial because it limited the potential for something called <a href="https://theconversation.com/essential-health-benefits-suddenly-at-center-of-health-care-debate-but-what-are-they-75125">adverse selection</a>, whereby only the sickest individuals, usually those with high medical costs, sign up for insurance. Without a requirement to carry insurance, and with insurers required to offer insurance to all comers, healthy individuals are likely to only sign up when they get sick if there is no mandate.</p>
<p>Without the requirement to purchase insurance, the Congressional Budget Office predicts that <a href="https://www.cbo.gov/publication/53300">13 million fewer Americans</a> will have health insurance. Potentially, and equally significant, insurance markets will likely be further destabilized. Insurance companies may decide to further <a href="https://www.cbo.gov/publication/53300">reduce the number of policies they offer in the insurance marketplaces, or even stop offering policies</a>. As a result, potentially millions of Americans could be left without options to purchase insurance.</p>
<p>Without further actions, the bill would also trigger an automatic reduction in Medicare spending <a href="https://www.cbo.gov/publication/53319">of US$500 billion over 10 years</a>. Republicans would have to pass separate legislation, with Democratic support, to avoid this scenario.</p>
<p>Moreover, the Senate’s tax reform also does more subtle things, including reducing the <a href="https://khn.org/news/patients-with-rare-diseases-and-congress-square-off-over-orphan-drug-tax-credits/">incentives for pharmaceutical companies</a> to develop drugs for rare disease. It also extends taxes to graduate student tuition waivers and eliminates the <a href="http://www.thecrimson.com/article/2017/12/1/students-criticize-tax-plan/">student loan interest deduction</a>, both crucial for future physicians and researchers.</p>
<h2>In the long run: Starving the beast?</h2>
<p>However, while the effects of the legislation, if enacted, will be felt immediately, the most crucial implications may lie in the future. The tax bill is projected to add <a href="https://www.nytimes.com/interactive/2017/11/28/us/politics/tax-bill-deficits.html">$1 trillion</a> to the federal deficit. As a result, Republicans will likely move to cut funding to all of America’s social programs, from food stamps to Medicare and Social Security, with privatization being the final goal.</p>
<p>This is consistent with long-term goals of the Republican Party. Going back to the <a href="https://www.cambridge.org/core/journals/journal-of-policy-history/article/inching-toward-universal-coverage-statefederal-healthcare-programs-in-historical-perspective/E94A03DD1F60F9DCBE3DDE9728DA3224">New Deal and the Great Society</a>, large parts of the GOP have been opposed to the creation and extension of social programs like Social Security and Medicare. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/197682/original/file-20171204-23018-43d4ab.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Reagan celebrates with his staff in the Oval Office the passage of Federal Tax Legislation, the first of the two ‘Reagan cuts’ (July 29, 1981).</span>
<span class="attribution"><a class="source" href="https://reaganlibrary.gov/photo-galleries/white-house-staff-and-meetings">Ronald Reagan Library</a></span>
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</figure>
<p>Yet, once enacted, the programs largely proved incredibly popular. Historically, they became virtually impossible to undo because of large popular and interest group support.</p>
<p>Because those programs proved impervious to frontal assault, Republicans have opted for a backdoor strategy. </p>
<p>First, they have sought to reduce the ability of government to raise revenues. Over time, accumulating deficits and debt would inevitably trigger the need for adjustments to either taxes or social programs. </p>
<p>They then could implement the second step. Figuring that Americans would be loathe to give up their tax cuts, Republicans would then be able to cut and potentially privatize even the most popular social programs. </p>
<p>In short, they would force reductions in social spending by reducing the ability of government to fund these programs, a strategy that has been called <a href="https://object.cato.org/sites/cato.org/files/serials/files/policy-report/2004/3/cpr-26n2-2.pdf">“starve the beast.”</a></p>
<p>The first major success using this strategy was the <a href="https://www.finance.senate.gov/imo/media/doc/Hrg95-93.pdf">indexing of tax brackets in the 1970s</a>. Previously, government tax receipts had grown implicitly as inflation pushed taxpayers into higher tax brackets. To a large degree, Democrats had not been required to raise taxes for social spending. </p>
<p>When indexing and cuts did not prove enough to trigger major reductions in social programs, Republicans, and many conservative Democrats, pushed through <a href="https://taxfoundation.org/comparing-kennedy-reagan-and-bush-tax-cuts/">major cuts </a> under the Reagan and Bush administrations.</p>
<p>Yet, Republicans had not expected the public’s reaction: Taxpayers wanted their cake and to eat it, too; taxpayers loved their reduced taxes, but the demand for social spending went unabated. The results are obvious today: Federal deficits cumulative driving the national debt <a href="http://www.usdebtclock.org/">above $20 trillion, or 106 percent of GDP</a>.</p>
<p>Fast-forward to 2017. Republican efforts to undo the ACA have gone significantly beyond the Obama administration’s signature accomplishment and include <a href="https://theconversation.com/not-just-for-the-poor-the-crucial-role-of-medicaid-in-americas-health-care-system-78582">transformational changes to the Medicaid program</a>. Talk about <a href="https://www.washingtonpost.com/news/wonk/wp/2017/12/01/gop-eyes-post-tax-cut-changes-to-welfare-medicare-and-social-security/">privatizing Social Security and Medicare</a> has also been common. </p>
<p>Republicans have not able to accomplish any of it outright. But further increasing the federal deficit may just be enough to make significant changes to our nation’s social programs. Republican leaders are doubling on down on their strategy. Starving the beast may finally work.</p>
<h2>Health care will change</h2>
<p>The changes to the health care of many Americans potentially ushered in by tax reform are significant and damaging. Many Americans will lose access to health insurance, costs are <a href="https://www.aarp.org/politics-society/advocacy/info-2017/senate-tax-premiums-fd.html">projected to increase</a> and fewer individuals will be able to <a href="https://theconversation.com/tax-bills-attack-on-higher-education-undermines-americas-economic-vitality-88428">afford getting an education</a>. People will be hurt.</p>
<p>The long-term implications may be even more significant and culminate in transformational changes to American social program not seen since the 1960s. If successful, Republicans may prove successful in their long-running quest to undo the health protections the country has had since the New Deal and the Great Society.</p><img src="https://counter.theconversation.com/content/88624/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon F. Haeder does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Senate tax bill cuts taxes for many of the nation’s richest and cuts programs for social safety nets. Here’s how the Affordable Care Act, Medicare and Medicaid are all affected.Simon F. Haeder, Assistant Professor of Political Science, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/843172017-09-20T03:14:08Z2017-09-20T03:14:08ZHow the latest effort to repeal Obamacare would affect millions<figure><img src="https://images.theconversation.com/files/186610/original/file-20170919-16985-113283u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">From left, Sen. Dean Heller, R-Nev., Sen. Bill Cassidy, R-La., Sen. Ron Johnson, R-Wis., and Sen. Lindsey Graham, R-S.C., hold a press conference on Capitol Hill in Washington, Wednesday, Sept. 13, 2017. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Congress-Health-Overhaul/62e533c109554ce28adbfb4e275e46a6/1/0">AP Photo/Andrew Harnik</a></span></figcaption></figure><p>At the end of July, the nation held its collective breath as Senate Majority Leader Mitch McConnell (R-Ky.) looked poised to achieve his most formidable parliamentary accomplishment: the <a href="https://www.nytimes.com/2017/07/27/us/politics/senate-health-care-vote.html?mcubz=0&_r=0">repeal and replacement of the Affordable Care Act</a>.</p>
<p>But Republican hopes were dashed by one of their own, Sen. John McCain (R-Ariz.), who <a href="https://www.washingtonpost.com/powerpost/the-night-john-mccain-killed-the-gops-health-care-fight/2017/07/28/f5acce58-7361-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.00c807d2ce92">cast the deciding vote</a> that appeared to decisively derail the multi-year effort. </p>
<p>McCain called to return to “regular order,” to work through committees, to bring in and listen to experts, to be open and transparent, and perhaps most importantly, to at least listen to both parties.</p>
<p>And indeed, Senators Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) went to work, bringing together demands from Republicans like <a href="https://www.axios.com/murray-makes-big-concession-in-bipartisan-health-talks-2486922713.html">more flexibility for states to waive certain provisions of the ACA</a>, and demands from Democrats to provide cost-sharing subsidies, for example, to <a href="http://thehill.com/policy/healthcare/350643-senate-health-panel-aims-for-deal-on-stabilizing-markets-early-next-week">stabilize health care markets</a>. The bipartisanship appeared to be spreading as <a href="https://www.hatch.senate.gov/public/index.cfm/releases?ID=071428C9-0FD3-4C76-B3E1-734F93B46CF4">Orrin Hatch (R-Utah) and Ron Wyden (D-Ore.)</a> appeared to have reached an agreement on the future of the Children’s Health Insurance Program.</p>
<p>Now Republican hopes of repealing the ACA have been rekindled with the <a href="http://files.kff.org/attachment/Summary-of-Graham-Cassidy-Heller-Johnson-Amendment">Graham-Cassidy-Heller-Johnson Amendment</a> led by Senators Lindsey Graham (R-S.C.) and Bill Cassidy (R-La). </p>
<p>Like all health care legislation, the bill is complex, but the broad outlines of it are rather clear: It would undo much of the reforms implemented through the ACA and then go a step further.</p>
<h2>What’s in the bill?</h2>
<p>Senate Republicans are rushed once more as they want to achieve health care reform by September 30, the deadline to pass the bill through the <a href="http://www.politifact.com/truth-o-meter/article/2017/jun/22/senate-health-care-bills-two-front-war-policy-and-/">reconciliation process</a> which requires only a simple majority. Indeed, due to their haste, the Congressional Budget Office <a href="https://www.cbo.gov/publication/53116">will not be able to provide any estimates of the bill’s effects on the deficit, health insurance coverage or premiums</a>.</p>
<p>Graham-Cassidy seeks to undo many of the reforms initiated by the ACA. For one, by 2020 it would eliminate the ACA’s Medicaid expansion, which has provided coverage <a href="http://www.kff.org/health-reform/state-indicator/medicaid-expansion-enrollment/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D">for 12 million Americans</a> for <a href="http://jhppl.dukejournals.org/content/40/2/281.short">states that chose to expand their program</a>. However, it would prevent new states from expanding their program by 2017. It would also eliminate the insurance marketplace subsidies to assist individuals purchase coverage and with out-of-pocket costs. </p>
<p>To soften states’ financial losses, Graham-Cassidy partially replaces funding for both components with a temporary block grant to states that would run out in 2026. Yet even with the block grant, states would see their funding reduced by a combined <a href="https://www.cbpp.org/research/health/cassidy-graham-plans-damaging-cuts-to-health-care-funding-would-grow-dramatically-in">US$239 billion over six years</a>, according to an analysis by the left-leaning Center on Budget and Policy Priorities. </p>
<p>Graham-Cassidy also significantly alters the regulatory reforms implemented via the ACA. The much-maligned individual and employer mandates would be repealed retroactively. The individual mandate requires that all people of a certain income buy insurance or face a penalty. The employer mandate requires that all employers of a certain size provide insurance to their employees.</p>
<p>While individuals still could not be turned down based on their health status, states could also obtain waivers to weaken or wholly eliminate <a href="https://theconversation.com/how-pre-existing-conditions-became-front-and-center-in-health-care-vote-77138">preexisting condition protections</a>. For example, the Center for American Progress has estimated that individuals could face insurer premium <a href="https://www.americanprogress.org/issues/healthcare/news/2017/09/18/439091/graham-cassidy-aca-repeal-bill-cause-huge-premium-increases-people-pre-existing-conditions/">surcharges of $140,000 for metastatic cancer, $17,000 for being pregnant and $26,000 for rheumatoid arthritis</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=317&fit=crop&dpr=1 600w, https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=317&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=317&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=398&fit=crop&dpr=1 754w, https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=398&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/186642/original/file-20170919-22701-b07sdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=398&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In one analysis, states could choose to not cover well visits to doctors.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/senior-doctor-patient-giving-prescription-medication-334498577?src=ywBZ1LFStjWJgkk4IwaquA-1-26">rocketclips/www.shutterstock.com</a></span>
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</figure>
<p>Similarly, states would be able to waive the ACA’s <a href="https://theconversation.com/essential-health-benefits-suddenly-at-center-of-health-care-debate-but-what-are-they-75125">Essential Health Benefit</a> provisions that required insurers to cover cost for expenditures like ambulance transport, prescription drugs and inpatient services. This would affect all individuals in the respective states because lifetime and annual limits apply only to the Essential Health Benefits. States could also waive the requirement to cover preventive services like immunizations and well-child visits.</p>
<p>Yet like most of the previous efforts to repeal the ACA over the past several months, Graham-Cassidy goes well beyond addressing changes brought about by the ACA. Most severely, the bill moves to dramatically slash and transform the Medicaid program. It would do so by establishing severe per capita caps: that is, it would provide a set amount of money for each enrolled individual compared to an open-ended federal match. These caps, which would affect children, seniors and individuals with disabilities, would also begin in 2020. They would be adjusted by inflation, but not the much larger medical inflation. They would thus result in further reductions over time. The resulting cuts would amount to $175 billion by 2026. </p>
<p>It would also allow states to establish work requirements for the program, defund Planned Parenthood and further expand <a href="https://theconversation.com/why-health-savings-accounts-are-a-bust-for-the-poor-but-a-boost-for-the-privileged-81013">Health Savings Accounts</a>, among other things.</p>
<p>However, unlike most of its <a href="http://files.kff.org/attachment/Summary-of-the-Better-Care-Reconciliation-Act-Updated-072017">predecessors</a>, Graham-Cassidy provides political protections for its supporters because the full extent and severity of its cuts would not fully emerge until 2027, at least two elections away for most senators. The Center on Budget and Policy Priorities has estimated that the effect in 2027 alone, the cliff year, would amount to <a href="https://www.cbpp.org/research/health/cassidy-graham-plans-damaging-cuts-to-health-care-funding-would-grow-dramatically-in">$300 billion</a>. California alone would lose $58 billion, while the state of West Virginia would lose $2 billion. The Center on Budget and Policy Priorities also expects that <a href="https://www.cbpp.org/research/health/cassidy-graham-plans-damaging-cuts-to-health-care-funding-would-grow-dramatically-in">more than 32 million</a> Americans would lose their insurance.</p>
<h2>A step backward … and not addressing the real issues</h2>
<p>In my reading, Graham-Cassidy, just like all its predecessors, does little to fix the problems of the American health care system.</p>
<p>Our system is generally of low quality. Medical errors kill more than <a href="http://www.bmj.com/content/353/bmj.i2139">250,000 Americans each year, making it the third leading cause of death</a>. Prescription errors alone are responsible for more than <a href="https://www.forbes.com/sites/leahbinder/2013/09/03/the-shocking-truth-about-medication-errors/#6e7c907510ab">7,000 deaths</a>. Virtually the entire developed world, and many less-developed countries, are ahead of us with regard to <a href="https://www.cia.gov/library/publications/the-world-factbook/rankorder/2091rank.html">infant mortality</a>. The list goes on.</p>
<p>Despite these obvious shortcomings, our health care system is also, by far, the most expensive system in the world. We spend more than <a href="http://www.commonwealthfund.org/publications/issue-briefs/2015/oct/us-health-care-from-a-global-perspective">17 percent of our GDP, or well over $9,000 per person</a>, on health care. This compares to <a href="http://www.commonwealthfund.org/publications/issue-briefs/2015/oct/us-health-care-from-a-global-perspective">10 percent and $3,700 for Japan</a>, <a href="http://www.commonwealthfund.org/publications/issue-briefs/2015/oct/us-health-care-from-a-global-perspective">11 percent and $4,900 for Germany</a>, and <a href="http://www.commonwealthfund.org/publications/issue-briefs/2015/oct/us-health-care-from-a-global-perspective">9 percent and $3,300 for the United Kingdom</a>.</p>
<p>And yet, even after the coverage expansions of the Affordable Care Act, and <a href="http://www.commonwealthfund.org/publications/issue-briefs/2015/oct/us-health-care-from-a-global-perspective">after spending more money from the public’s purses than all but two countries</a>, our uninsurance rates just <a href="http://www.dailynews.com/2017/09/16/healthcare-uninsured-rate-in-us-falls-to-record-low-of-8-8/">inched below 10 percent, and more than 28 million Americans are without insurance</a>.</p>
<p>Indeed, we do not even cover all children in this country, although the rate of insurance from children reached a <a href="http://www.kff.org/other/state-indicator/children-0-18/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D">historic high of 95 percent</a>.</p>
<p>With low quality, high costs and lack of universal coverage, much needs to be improved about the American health care system. Unfortunately, Graham-Cassidy as currently written does nothing to improve quality, and it does nothing to reduce the underlying drivers of excessive costs. Indeed, it reverses the significant progress achieved under the ACA in offering coverage to all Americans.</p>
<p>Large-scale changes to the American health care system cannot and should not be quickly patched together without input from the Congressional Budget Office, policy experts, the public and the other party. Many lives and one-sixth of our economy hang in the balance. The American public deserves better.</p><img src="https://counter.theconversation.com/content/84317/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon F. Haeder does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Senate vote in July seemed to signal the end of efforts to kill the Affordable Care Act. With a Sept. 30 deadline looming, though, a new bill has real possibilities. Here’s why that could be bad.Simon F. Haeder, Assistant Professor of Political Science, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/818002017-08-04T01:58:33Z2017-08-04T01:58:33ZWhat does choice mean when it comes to health care?<figure><img src="https://images.theconversation.com/files/180948/original/file-20170803-29097-xc6w41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">For many, the heart of the health care debate is the ability of patients to choose their own health care, including whether to buy insurance and which doctor to see. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doctor-patient-665808985?src=Pdsi6uHSlIvHgSRUUk28lA-2-79">Alpa Prod/Shutterstock.com</a></span></figcaption></figure><p>President Trump <a href="http://www.newyorker.com/news/john-cassidy/trumps-health-care-threats-are-nothing-but-spite-and-fury">continues to threaten</a> millions of Americans who now have health insurance with loss of coverage by <a href="https://theconversation.com/trump-isnt-letting-obamacare-die-hes-trying-to-kill-it-81373">undermining the Affordable Care Act</a>, commonly known as “Obamacare.” His goal has been to repeal the ACA, or to have it repealed by a version of congressional bills. </p>
<p>A <a href="https://www.washingtonpost.com/powerpost/the-night-john-mccain-killed-the-gops-health-care-fight/2017/07/28/f5acce58-7361-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.974c84f7b967">July 28 vote killed the Senate bill</a> temporarily, but the threat to those with coverage through the ACA is not over.</p>
<p>As we await the next proposals and rounds of debates, now is a good time to reflect on what the <a href="https://www.forbes.com/sites/theapothecary/2017/01/20/obamacares-individual-mandate-is-really-inefficient/#5ef651ef3ecb">Republicans most detested about Obamacare</a> – the individual mandate, which they argued took away personal choice. The mandate was an essential part of the law, however, by guaranteeing insurers that they would have a large enough pool of healthy people to offset the costs of insuring large numbers of unhealthy people.</p>
<p>As a philosopher of health policy, I think it could be instructional to assess their recent proposals through their lens of “choice.” </p>
<h2>Universal access and choice</h2>
<p>The public debate on proposed health care laws has focused largely on the number of uninsured, which would be lower if we moved to universal coverage. Many experts, advocates and nonprofit research groups, such as Kaiser Family Foundation, use the proportion of people who are covered as a quick way to test whether people have real access to health care. We got partway there with the ACA, with the percentage of <a href="http://www.kff.org/other/state-indicator/total-population/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D">uninsured dropping to 9 percent</a> in 2015. </p>
<p>After Trump was elected, Republicans tried to come up with bills, however, that focused not on reducing the number of uninsured but on ensuring that people had a choice about whether to buy insurance. They fought the mandate from the law’s beginnings, filing a lawsuit that reached the U.S. Supreme Court. Chief Justice John Roberts, a George W. Bush appointee, wrote the <a href="http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html">majority opinion that the mandate did not violate</a> the commerce clause of the Constitution.</p>
<p>If we take them at their word, the system the Republicans aim to replace the ACA with should be focused more on the choices people have, not the number of people who gain insurance. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=470&fit=crop&dpr=1 600w, https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=470&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=470&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=590&fit=crop&dpr=1 754w, https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=590&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/180944/original/file-20170803-4947-fxl5km.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=590&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Trump and House Speaker Paul Ryan celebrated at the White House on May 5, when the House of Representatives passed Ryan’s version of a health care bill.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Health-Care-Key-Moments/826c4035d73941b294a6089984bb81a9/1/0">AP Photo/Evan Vucci</a></span>
</figcaption>
</figure>
<p>The public should take seriously, at least for the sake of argument, the words of<a href="http://www.newsweek.com/resistance-resists-too-often-paul-ryan-health-care-trump-trumpcare-629479"> Paul Ryan</a>, when he said that no one should have to do something they do not want to do. <a href="https://www.usatoday.com/story/opinion/2017/03/13/paul-ryan-cbo-health-care-editorials-debates/99143928/">“Our plan is not about forcing people to buy expensive, one-size-fits-all coverage</a>. It is about giving people more choices and better access to a plan they want and can afford,” Ryan said in a statement issued in March 2017. </p>
<p>Their intent is to replace the goal of universal coverage with an alternative which some have called <a href="https://www.nytimes.com/2016/12/15/us/politics/paul-ryan-affordable-care-act-repeal.html?_r=0">“universal access.”</a> Universal access aims to give people the “choice” of having coverage or foregoing that coverage for other priorities they may have.</p>
<h2>What would a real choice require?</h2>
<p>To have a real choice, people would have to be able to buy insurance plans that meet their possible health needs, both for prevention and treatment. They could compare that choice with the choice to forego coverage. </p>
<p>This means they are not in the position of having only a forced choice. If they have a real choice, they no longer are choosing between a plan they can afford, whose reduced cost reflects the fact that it fails to provide access to preventive or treatment services they want and need, and one they cannot afford at all, though it provides access to the preventive and treatment needs they come to have. </p>
<p>Millions in the U.S. faced such a forced “choice” when they bought in the individual health insurance that preceded the ACA marketplaces.</p>
<p>Such a choice is not a real choice. It is forced because the outcome is determined by limited resources and the lack of freedom that the situation creates.</p>
<h2>Paying for real choice</h2>
<p>Of course, since some goods we want, like cars, come in different brands with different prices, we may not see buying a Chevy instead of a Mercedes as a loss of freedom. If we only want a way to get from A to B, we might not care that the Mercedes provides a better ride and is more prestigious.</p>
<p>But, in buying access to health care, we all want the best care. We all, correctly, think that we are valuable in the ways that health care systems should respect even if we have other preferences and priorities regarding cars. In short, people generally accept ability to pay as a principle for car purchases, but not as a principle for buying access to needed health care.</p>
<p>Accordingly, the Republican effort to avoid coercion and take choice seriously would cost more than their plans allow. </p>
<p>The plans they have offered significantly reduce subsidies to the poor and throw people out of Medicaid, resulting in an <a href="http://healthaffairs.org/blog/2017/06/26/cbo-projects-that-22-million-would-lose-coverage-under-senate-bill/">estimated 22 million people losing insurance</a> coverage. The result is a forced choice, not a real choice, especially for people who want some coverage and perhaps need it but have limited resources that would have qualified them for Medicare or subsidies.</p>
<h2>What happens when some people ‘choose’ to forego coverage?</h2>
<p>The Republican approach does not seem to take into account that even a real choice to forego coverage imposes harms on third parties. It does so by raising the cost and thus limiting the availability of insurance to other people. </p>
<p>Since the Republican plans purport to care about the choices for everyone, these consequences – the harms they impose – are ethical reasons to oppose them on their own terms. Young, healthy people should not be able to “choose” to forego coverage when older, sicker people face only forced choices.</p>
<p>Many people want coverage. What happens to the costs of insurance if the system allows people, who save money by foregoing coverage while they are young and healthier than the average older, sicker person, to receive needed emergency care when they need it? </p>
<p>Consider “free riders,” who may be anyone who foregoes buying insurance coverage but later can get needed health care. The cost of a system that allows people to join it when they have not shared in the cost of providing that care is greater than the cost of a system that excludes such “free riders.” </p>
<p>So allowing those who free ride not to die in the streets when they need care, which is what the existing system of emergency medical care (EMTALA) intends and which Republican plans do not challenge, means that free riding imposes higher costs on those who buy insurance coverage. This is a harm to those who have a real choice to buy coverage. This harm to others involves a cost that goes beyond the unfairness of allowing those who do not contribute their fair share to enjoy the benefit of health care when they need it.</p>
<p>Creating this incentive to free ride is part of what creating “choice” – as envisioned by Republicans – involves. </p>
<h2>Skimpy plans</h2>
<p>Similarly, the <a href="http://thehill.com/policy/healthcare/340570-cruz-plan-could-be-key-to-unlocking-healthcare-votes">Cruz amendment</a>, proposed by Sen. Ted Cruz (R-Texas), to the recent Senate bill would have allowed insurers to market less expensive plans that skimp on needed health care as long as the insurer also markets less skimpy plans at higher prices.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/180945/original/file-20170803-17289-ofxbpa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sen. Ted Cruz (R-Texas).</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/sioux-center-iowa-january-5-2016-358800029?src=GaOBgP2LzPVylfb9248ecg-1-0">Rich Koele/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>But the increasing stratification that this amendment produces means greater costs to those who buy less skimpy insurance, harming them. (At the same time, those people facing a forced choice of the skimpy insurance or less skimpy but unaffordable insurance are said to simply “choose” it.)</p>
<p>In sum, the “choice” underlying the congressional plans not only is not really paid for, but exercising that “choice” would harm others in a way that undercuts any appeal it has. Universal access is worse than universal coverage because of the “choice” it creates. </p>
<p><em>Brendan Saloner, assistant professor at the Bloomberg School of Public Health at Johns Hopkins University and a former student of Prof. Daniels, contributed to research for this article.</em></p><img src="https://counter.theconversation.com/content/81800/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Norman Daniels does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Republican position on health care has been based upon a belief in individual choice. Here’s how their own versions of health care bills eroded choice, however, and how they also did harm.Norman Daniels, Professor of Population Ethics and Professor of Ethics and Population Health, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/799762017-06-23T01:15:43Z2017-06-23T01:15:43ZHow to make sense of the Senate health care bill: 4 essential reads<figure><img src="https://images.theconversation.com/files/175276/original/file-20170622-13061-z8pclp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Majority Leader Mitch McConnell (R-Kentucky) smiles after he unveiled the Senate health care bill on June 22, 2017. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/APTOPIX-Congress-Health-Overhaul/88619c7a54af46edb7dd293eb93931bf/5/0">Scott Applewhite/AP</a></span></figcaption></figure><p><em>Editor’s note: The following is a roundup of archival stories related to the health care bill presented by Senate Republicans June 22, 2017.</em></p>
<p>When President Trump ran on a promise to “repeal and replace the disaster that is Obamacare,” he had plenty of support from congressional Republicans. They had tried dozens of times to strike down President Obama’s signature health care law, but so long as Obama was in office, he could block their efforts. </p>
<p>That was then, and this is now an entirely different era. </p>
<p>Stymied <a href="https://theconversation.com/essential-health-benefits-suddenly-at-center-of-health-care-debate-but-what-are-they-75125">previously</a>, the Republican-led Congress and Trump are determined to enact a new health care law. They moved another step closer on June 22, when Senate Majority Leader Mitch McConnell (R-Kentucky) unveiled the Senate plan.</p>
<p>While it is a modified version of a plan the House passed in May, the Senate bill retains many of the House bill’s provisions. Republican sponsors and backers say it softens the blow of some of the previous bill’s provisions that could result in people becoming uninsured by extending the period over which the changes would be enacted. Opponents are saying it only extends the time for enacting changes so that senators who will be up for reelection in six years might be spared the ire of voters who have lost their insurance.</p>
<p>Now that the Senate has revealed its plan, we’ve gone back into our archives to identify and explain the key issues of the health care law, including Medicaid expansion, the individual mandate and essential health benefits. </p>
<h2>One of the biggies: Medicaid rollback</h2>
<p>One of the key provisions of the Affordable Care Act, or Obamacare, was the expansion of Medicaid coverage to adults whose incomes are so low that they could not afford to buy insurance. Before expansion, most states’ Medicaid programs paid for insurance coverage for children, disabled adults and seniors’ nursing care. </p>
<p>The federal government provided money to the states to fund the expansion, but 19 states refused the money – and thus the expansion.</p>
<p>The new bill would phase out Medicaid expansion in the states that participated. That could be a disastrous move, many health care advocates fear, even though Republicans view that as a way to control costs. </p>
<p>West Virginia University public policy scholar Simon Haeder explained in a <a href="https://theconversation.com/not-just-for-the-poor-the-crucial-role-of-medicaid-in-americas-health-care-system-78582">June 7, 2017 article</a> that Medicaid long ago ceased to be a program for the poor and instead “provides the backbone of America’s health care system.” </p>
<blockquote>
<p>“Indeed, it is the largest single payer in the American health care system, covering more than 20 percent of the population. This amounts to 75 million American children, pregnant women, parents, single adults, disabled people and seniors.</p>
<p>"To put this in perspective, this is about the same number of individuals as the nation’s two largest commercial insurers combined. Roughly half of all enrollees are children.”</p>
</blockquote>
<p>University of Southern California health economist Darius Lakdawalla, University of Chicago economist Anup Malani and Stanford University professor of medicine Jay Bhattacharya explained that Medicaid is far from a perfect program, however, and <a href="https://theconversation.com/why-america-needs-a-do-over-on-medicaid-reform-75524">could stand an “do-over.”</a> Low reimbursement rates to doctors are a big problem, they wrote. </p>
<blockquote>
<p>“Medicaid provides lower reimbursements to physicians than private insurance or Medicare, the federal health program for elderly and disabled Americans. The result: fewer physicians accepting Medicaid coverage and fewer choices for Medicaid beneficiaries.</p>
<p>"Prior studies suggest that about one-third of physicians nationwide refuse to accept new patients on Medicaid, and this problem is even worse in urban areas.</p>
<p>"Rural areas have their own problems with the program. Their residents are poorer and more likely to be on Medicaid. The prevalence of Medicaid coverage, and its stingier reimbursements, is one reason why hospitals in rural areas have closed down.”</p>
</blockquote>
<h2>Mandate gets nixed</h2>
<p>Republicans detested one provision of Obamacare so much that they contested it – all the way to the Supreme Court. This is the so-called individual mandate, or the requirement that all people above a certain income buy insurance or else face a penalty. Opponents of the mandate said the requirement was unconstitutional. In a 5-4 decision on June 28, 2012, the court disagreed, upholding the mandate and drawing the wrath of Republicans, many of whom turned on Chief Justice John Roberts, who authored the majority opinion.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=890&fit=crop&dpr=1 600w, https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=890&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=890&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1118&fit=crop&dpr=1 754w, https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1118&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/175278/original/file-20170622-12021-1emm4gi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1118&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice John Roberts, a George W. Bush appointee, drew rebukes from conservatives after the 2012 ruling on Obamacare upheld the individual mandate.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court/f31bf42cfbd54c5fb9d357e9770816ab/41/0">J. Scott Applewhite/AP</a></span>
</figcaption>
</figure>
<p>The Senate bill, like its sister House bill, would kill that mandate. </p>
<p>But the purpose of the mandate is to bring healthy people into the insurance market, health policy scholars have written in The Conversation. Insurers need those healthy people to lower risk and buffer against the higher costs associated with sicker people. And without such a mandate, healthy people will not enroll, and the marketplace would crumble. </p>
<p>Georgia State University scholar <a href="https://theconversation.com/could-the-individual-insurance-market-collapse-in-some-states-heres-how-that-could-happen-74354">Bill Custer explained</a> it this way in a March 2017 piece for The Conversation:</p>
<blockquote>
<p>“But when healthy individuals choose not to purchase health insurance, insurers are left with costs greater than their premium income. That forces insurers to increase their premiums, which in turn leads healthier individuals to drop coverage increasing average claims costs.</p>
<p>"An adverse selection death spiral results when insurers can’t raise their premiums enough to cover their costs and they leave the market.”</p>
</blockquote>
<h2>Essential health benefits would change</h2>
<p>Obamacare required that insurers provide coverage for certain services deemed to be basic, or essential, to good health. The goal was to prevent insurers from offering pared-back plans that would leave consumers empty-handed in time of medical need. These included such things as maternity benefits, emergency care and hospitalization. </p>
<p>This provision has long irked conservative Republicans, who view it as not only costly but also an example of governmental intrusion. Like the House bill, the Senate bill allows states more choice about these essential health benefits.</p>
<p>West Virginia’s Simon Haeder explained in a March 2017 piece how the <a href="https://theconversation.com/essential-health-benefits-suddenly-at-center-of-health-care-debate-but-what-are-they-75125">essential health benefits</a> came about:</p>
<blockquote>
<p>“Even when essential services requirements were in place before the ACA, they were often fairly weak and allowed insurers to make coverage optional or to cap allowable benefits. This greatly affected what and how much care people had access to.</p>
<p>"For example, 62 percent of individuals in the individual market lacked maternity coverage and 34 percent lacked coverage for substance abuse disorder treatment.</p>
<p>"Thus, the EHB provisions were included in the ACA, for many reasons. First, the ACA was intended to provide coverage that offers viable protection against some of the most basic health care costs Americans experience.”</p>
</blockquote><img src="https://counter.theconversation.com/content/79976/count.gif" alt="The Conversation" width="1" height="1" />
The Senate released its new health care bill on June 22, 2017, and it differs slightly from a bill passed by the House in May. Read what our experts have written in recent months about key pieces.Lynne Anderson, Senior Health + Medicine Editor, The Conversation, USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/751252017-03-24T20:02:48Z2017-03-24T20:02:48ZEssential health benefits suddenly at center of health care debate, but what are they?<figure><img src="https://images.theconversation.com/files/162385/original/image-20170324-12149-cq5bed.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lisa Schwetschenau, who has multiple sclerosis, shown in a photo in Omaha, Nebraska on March 16. She worries that she could lose some of her essential health benefits under the new proposed health care law.</span> <span class="attribution"><span class="source">Nati Harnik/AP</span></span></figcaption></figure><p>Republicans have <a href="http://www.cnbc.com/2017/03/22/heres-why-the-gop-is-coming-up-short-on-votes-to-repeal-obamacare.html">tirelessly campaigned</a> to repeal and replace the <a href="https://www.medicaid.gov/affordable-care-act">Affordable Care Act (ACA)</a> with a conservative, market-based approach to health care. Almost seven years after its passage, and with the election of a Republican president and Congress, the ACA appeared destined to be repealed and potentially replaced. </p>
<p>The House was scheduled to but did not vote on March 24 on that replacement, the <a href="http://www.speaker.gov/HealthCare">American Health Care Act (AHCA)</a>. In the debate running up to the vote, a major sticking point was a relatively obscure, albeit important, component of the ACA called the <a href="https://www.healthcare.gov/coverage/what-marketplace-plans-cover/">Essential Health Benefit (EHB)</a> provision. </p>
<p>These benefits are those deemed “essential” by the authors of the ACA. They include maternity and newborn care, prescription drugs, emergency services and hospitalization. </p>
<p>As a public policy professor, I have studied the EHB provision, their benefits and drawbacks, and how they fit into the overarching construct of the ACA. While there may be room to improve the EHB provision, I have no doubt that outright eliminating the essential health benefits provisions of the ACA would prove to be disastrous.</p>
<h2>How the benefits came to be - and to be so loathed</h2>
<p>The provision has, together with the individual mandate, long been a bane to conservatives and libertarians. Opponents of the ACA see the EHB as restricting consumer choice and artificially inflating the cost of insurance. </p>
<p>Nonetheless, the elimination of the EHB was initially not included in the Republican efforts to repeal the ACA. Indeed, it was added only when it became clear that the Republican leadership lacked the votes to pass the AHCA because of the <a href="https://www.washingtonpost.com/news/powerpost/wp/2017/03/22/what-the-freedom-caucus-wants-in-the-gop-health-bill-and-why-they-arent-getting-it/?utm_term=.5fb1e06af28f">recalcitrance of their most conservative members</a>. </p>
<p>Prior to the ACA, it was up to each respective state to determine what benefits, called insurance mandates, had to be included in insurance plans. Not surprisingly, states differed widely in terms comprehensiveness required, and no specific benefit was deemed essential in all 50 states and Washington, D.C.</p>
<p>While most states required the <a href="https://lintvwpri.files.wordpress.com/2013/10/mandatesinthestates2011execsumm.pdf">inclusion of such benefits</a> as emergency room services (44 states), far fewer required coverage for well-child visits (32), contraceptives (30), maternity services (25), rehabilitation services (7) or prescription drugs (5).</p>
<h2>Pre-ACA requirements were weak</h2>
<p>Even when essential services requirements were in place before the ACA, they were often fairly weak and allowed insurers to make coverage optional or to cap allowable benefits. This greatly affected what and how much care people had access to. </p>
<p>For example, 62 percent of individuals in the individual market lacked maternity coverage and <a href="https://aspe.hhs.gov/basic-report/essential-health-benefits-individual-market-coverage">34 percent lacked coverage for substance abuse disorder treatment</a>.</p>
<p>Thus, the EHB provisions were included in the ACA, for many reasons. First, the <a href="https://www.medicaid.gov/affordable-care-act">ACA was intended</a> to provide coverage that offers viable protection against some of the most basic health care costs Americans experience. </p>
<p>Also, EHBs were designed to provide marketplace consumers with insurance coverage similar to the coverage of employer-sponsored insurance and Medicaid. It would not be a pared-back, bare-bones policy commonly available prior to the ACA.</p>
<p>Another goal was to empower consumers by helping them to compare different insurance plans in the insurance marketplaces. As all plans are required to provide the same basic services, insurers would be required to compete on a level playing field – and not by artificially reducing premiums by excluding essential services. </p>
<p>However, the inclusion of a minimum set of benefits also had technical reasons that are soundly based in health economics. As insurers are now required to accept all interested consumers, insurers with a more comprehensive benefit design would inevitably attract a disproportionate number of sick, and thus costly, individuals. Health economists refer to this process as <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1541-0072.2012.00446.x/abstract">adverse selection</a>. As a result, premiums for these insurers would significantly increase. In response, insurers could either adjust their benefit design or exit the market.</p>
<p>Finally, the broad set of benefits was meant to attract a large, diverse pool of consumers who would jointly share risk and cost for the services covered under the EHB. By attracting a diverse set on consumers, insurers would not be disproportionately exposed to certain high-cost individuals and the overall insurance market would be stabilized. </p>
<p>By requiring insurers to compete on price and quality – and by not allowing them to utilize benefit design to discourage individuals to sign up for their plans – sicker individuals are more evenly spread among all insurers. </p>
<h2>What would happen without them?</h2>
<p>ACA opponents have argued these requirements restrict consumer choice and artificially inflate the cost of insurance. However, eliminating the EHB provisions would likely entail a variety of negative consequences for individual consumers, insurance market, and the broader health care system. </p>
<p>The difficulty for consumers to understand and navigate the health care and insurance system is <a href="http://content.healthaffairs.org/content/22/4/147.full">well-documented</a>. The EHB guarantee consumers that a <a href="http://www.sciencedirect.com/science/article/pii/S0168851014002607">certain set of basic services</a> are included in their insurance and that they are covered in case of sickness. Without EHBs, insurance plans with different benefit designs and structures would likely proliferate. The amount of information would likely overwhelm most consumers and thus make the comparison of insurance plans virtually impossible. </p>
<p>More generally, the elimination of the EHB requirement could dramatically impact insurance markets across the country. No longer required to provide a certain minimum of benefits, insurers <a href="https://www.nytimes.com/2017/03/23/upshot/late-gop-proposal-could-mean-plans-that-cover-aromatherapy-but-not-chemotherapy.html?_r=0">would successively reduce benefits</a> (a race to the skimpiest plan, if you will) in order to attract only the healthiest consumers. These people are the least likely to use services and thus prefer plans with limited protections and lower premiums. Eventually, most if not all plans would be <a href="https://www.nytimes.com/2017/03/23/upshot/late-gop-proposal-could-mean-plans-that-cover-aromatherapy-but-not-chemotherapy.html?_r=0">priced at the available tax credits</a> offered under the AHCA, because at that point these plans would essentially be free for eligible Americans.</p>
<p>As insurers move toward offering ever skimpier plans, individuals would remain free to purchase additional benefits. However, insurers could charge prohibitively high prices for these optional benefits. Or, they could be hesitant to offer these optional benefits at all, as only individuals who expect to use them would be likely to purchase them. </p>
<p>Similarly, healthy individuals could sign up for the skimpiest available insurance plans in order to fulfill the requirement to remain continuously insured. They would then expand their benefits without incurring a penalty in case they fall sick and have large health costs to cover. Or, as the AHCA premium penalties are set rather low, the healthiest individuals could completely defer obtaining such coverage until a major medical need is incurred. Again, insurers would anticipate this behavior and refuse to offer comprehensive coverage.</p>
<p>Ultimately, eliminating the EHB essentially individualizes risk and cost by shrinking the risk pool down to a single individual, a situation similar to the situation prior to the enactment of the ACA. However, health insurance works best by creating a large, diverse pool of consumers with varying health care costs. The ACA sought to achieve this goal by combining the EHB with requirements for insurers to accept all consumers and for consumers to obtain coverage or pay a fine. If people sign up only when they are sick, it raises costs and makes plans unsustainable for insurers. </p>
<h2>A need to reevaluate, not eliminate</h2>
<p>This situation would potentially be further exacerbated by Republican plans to allow for the <a href="http://khn.org/news/sounds-like-a-good-idea-selling-insurance-across-state-lines/">selling of insurance across state lines</a>. Even if liberal states like California were to maintain similar consumer protections as present in the ACA, it is conceivable, even likely, that more conservative states like Florida would quickly move in the opposite direction. That is, they would allow for the sale of so-called bare-bones plans with few benefits or catastrophic plans – plans that only offer protection in case of significant financial exposure. </p>
<p>Both types of plans would naturally be less expensive compared to the more comprehensive plans, and thus attract the healthiest individuals. This has the potential of triggering a death spiral in the insurance markets of more protective states as their premiums would would skyrocket. </p>
<p>As such, individual consumers would bear significant hardship due to the elimination of the EHB. More limited coverage will inevitably lead to higher out-of-pocket costs for consumers.</p>
<p>The negative effects would likely be compounded for the broader health care system. Hospitals will be subject to increasing uncompensated care costs and will then shift these costs either to other consumers or be forced to close their doors. Also, a lot of the benefits of prevention and early intervention would likely be lost.</p>
<p>The EHBs have undeniably <a href="http://www.heritage.org/health-care-reform/report/obamacare-and-insurance-benefit-mandates-raising-premiums-and-reducing">raised insurance premiums</a>. However, this is hardly surprising because they have done so by reducing out-of-pocket costs and by providing consumers with <a href="https://www.nytimes.com/2016/04/21/upshot/obamacare-seems-to-be-reducing-peoples-medical-debt.html">meaningful protection against the vagaries of sickness</a>. </p>
<p><a href="http://www.sciencedirect.com/science/article/pii/S0168851014002607">In my own work</a>, I have shown the diverse approaches that states have taken to adapt the EHB to their local health insurance markets. Unfortunately, <a href="http://gradworks.umi.com/10/16/10164660.html">I have also shown</a> that states often do not rely on available policy expertise to balance adequate coverage with affordability. </p>
<p>Considering the benefits of EHBs, it would be prudent for all stakeholders to continuously revisit the important question of what services should be included in the EHB and which ones should not.</p><img src="https://counter.theconversation.com/content/75125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon F. Haeder does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Essential health benefits under Obamacare are suddenly the center of controversy in the proposed replacement bill. If certain health benefits are so essential, why are they so loathed? Here’s a look.Simon F. Haeder, Assistant Professor of Political Science, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/742402017-03-08T21:12:09Z2017-03-08T21:12:09ZA look at the House health care plan through the lens of faith, hope and charity<figure><img src="https://images.theconversation.com/files/160017/original/image-20170308-24204-1e8ypz2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House GOP leaders unveiling the American Health Care Act on March 7, 2017. </span> <span class="attribution"><span class="source">Susan Walsh/AP</span></span></figcaption></figure><p>Since the debate leading to the repeal and replacement of the Affordable Care Act (ACA) has taken on all the trappings of a religious battle, perhaps it would be good to look at the underpinnings of each side now that <a href="https://www.nytimes.com/2017/03/06/us/politics/affordable-care-act-obamacare-health.html?_r=0">House Republicans</a> have unveiled their plan. </p>
<p>It is clear from the new proposal, called the <a href="http://www.speaker.gov/general/american-health-care-act-fact-sheet">American Health Care Act</a>, that Republicans have faith in maximum choice and unfettered free markets, with no one telling anyone what to do. </p>
<p>As the ACA shows, Democrats, on the other hand, believe that choices need to be shaped and framed and that markets need help to work, especially regarding individual insurance. They also think that people won’t do what is best for them without a stick. Notably, the ACA’s individual mandate requires that everyone must be insured or face a penalty. </p>
<p>The Republicans concede individuals need more incentive to buy than they will have without the <a href="https://www.healthcare.gov/fees/fee-for-not-being-covered/">individual mandate</a> under the ACA. The mandate requires that everyone must have insurance or face a penalty. The rationale for this is to bring healthy people into the risk pool.</p>
<p>The new plan proposes a different approach, without much practical difference. It would allow the insurance companies to <a href="https://www.nytimes.com/2017/03/06/us/politics/affordable-care-act-obamacare-health.html">charge 30 percent</a> more to a customer who wants to sign up for health care if that person does not have current coverage. Thus the insurer – rather than the government – is paid via the penalty when someone hasn’t been insured.</p>
<p>The replacement does concede that <a href="http://healthaffairs.org/blog/2017/03/07/examining-the-house-republican-aca-repeal-and-replace-legislation/">basic services should be covered</a>, such as inpatient and outpatient hospital care, in order to make plans comparable, but does not specify the degree of coverage. It also <a href="https://www.washingtonpost.com/powerpost/new-details-emerge-on-gop-plans-to-repeal-and-replace-obamacare/2017/03/06/04751e3e-028f-11e7-ad5b-d22680e18d10_story.html?utm_term=.b21d29980df2">gets rid of the four comparison “metal” categories</a> – bronze, silver, gold and platinum – designed to let the shopper know the size of their residual responsibility. Instead, it lets companies offer whatever they want constrained only by required coverage of basic services and a range of 5:1 between the highest premium and the lowest rather than the current 3:1 ratio. </p>
<p>As with most religious debates, there is little agreement across these two points of view. Classical economists who believe there really is a free market might agree with the Republicans, while behavioral economists know that how a decision is framed is critical to avoiding big mistakes. </p>
<p>What this new bill does show us about the underlying political philosophies on how to best approach health care reform might be best captured by their difference in faith in markets and the role of the government in influencing choices. </p>
<h2>Both parties have hope, but of a different kind</h2>
<p>So what is the hope behind these alternative views? </p>
<p>Clearly, the Republican replacement proposal hopes to unleash unbridled competition, because the market will be unencumbered by government restrictions. This will lead to innovation, lower prices and better quality, the thinking goes. The miracle of the market will give the best value to both sides of the transaction – patients and providers – with insurers providing the mechanism to achieve this.</p>
<p>But the ACA illustrates that Democrats believe that this is a naïve hope, since insurers are far from perfect market makers, as I can testify as a former CEO. They spend a huge amount on nonmedical costs. This is especially true for individual insurance before the ACA, where sometimes half of the premium might go to administrative, rather than medical, costs.</p>
<p>Even in the far more efficient market for employers who purchase insurance for their employees as a group, the <a href="http://thehealthcareblog.com/blog/2012/02/04/does-obamacare-limit-profits-for-health-insurance-companies-in-your-state/">ACA forced insurance companies</a> to limit these overhead expenses to no more than a still very substantial 15 percent for large groups and 20 percent for smaller employers.</p>
<p>There are other reasons why competition among health insurance providers doesn’t always drive down costs for consumers. Beyond this insurer inefficiency, the health care market is riddled with other constraints that would blunt the impact of even cutthroat competition among insurers, whether within one state or competing across state lines, as Republicans hope will happen. </p>
<p>The consolidation among providers is the most serious of these. This has left them with the market power to resist efforts to drive down cost and prices. That is why the ACA relied so much on payment incentives and reorganization of providers to reshape the way health care is delivered towards lower cost and higher quality.</p>
<h2>Winners and losers</h2>
<p>This leaves charity – who pays and who is subsidized.</p>
<p>Republicans clearly honor age and wealth, as evidenced by their new proposal. Their proposed <a href="http://money.cnn.com/2017/03/06/news/economy/republicans-obamacare-repeal-replacement-bill/">refundable tax credits</a> are higher for older rather than poorer people, unlike those under the ACA that are scaled to income rather than age. </p>
<p>The “affordable” in the ACA is defined in a formula that, for the near-poor, defines 2 percent of income as a fair amount to pay for insurance. The tax credits paid to the insurer fill the gap between this and the premium. For those better off, the ACA requires up to 9.5 percent of income to be paid toward their insurance cost. </p>
<p>The replacement proposal disagrees. <a href="https://www.washingtonpost.com/powerpost/new-details-emerge-on-gop-plans-to-repeal-and-replace-obamacare/2017/03/06/04751e3e-028f-11e7-ad5b-d22680e18d10_story.html?utm_term=.b21d29980df2">It repeals the ACA’s subsidies</a>, effective in 2020. The alternative Republican tax credits are lower, are based on age and do not consider variation in income within age groups. </p>
<p>Charity might also be defined by who finances the whole thing. The ACA relies on lots of different taxes on all the players, but it <a href="http://www.marketwatch.com/story/obamacare-tax-increases-are-now-locked-in-at-least-through-2016-2015-06-25">hits the wealthy</a> especially hard. </p>
<p>The Republican replacement eliminates almost all of these but leaves a big question as to how the remaining costs are to be funded. This is likely to be a huge issue when the Congressional Budget Office weighs in. </p>
<p>But in a religious war, cost is often a secondary issue along with principle.</p>
<h2>So where does this leave us?</h2>
<p>Through the lens of faith, hope and charity, the two sides couldn’t differ more. As we have found over the ages, it is far easier to live with division than to join the one true church. In much the same way, there is little possibility of ecumenical peace here. The most we can wish for is a lack of outright war – but I am not optimistic about that. Stalemate in a gridlocked Congress is most likely.</p><img src="https://counter.theconversation.com/content/74240/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>J.B. Silvers is a board member of MetroHealth Medical Center. </span></em></p>The House Republican plan to replace Obamacare is consistent with many proposals that candidate Trump and others espoused. Yet key parts of it could favor the rich and hurt the poor and the aging.J.B. Silvers, Professor of Health Finance, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/631562016-09-12T01:41:49Z2016-09-12T01:41:49ZAnother cost of smoking: Sky-high insurance<figure><img src="https://images.theconversation.com/files/135826/original/image-20160829-17854-2gh86i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Smokers not only pay a lot of money for cigarettes but also for their health insurance.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/dl2_lim.mhtml?src=qEzc9_gA1ixTuMQodgBnGA-1-0&id=175429673&size=medium_jpg">www.shutterstock.com</a></span></figcaption></figure><p>Although the Affordable Care Act (ACA) eliminated some of the barriers to obtaining health insurance coverage, not all Americans have <a href="http://kff.org/health-reform/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid-an-update/">access to affordable coverage</a>. Low-income smokers in particular <a href="http://www.commonwealthfund.org/publications/blog/2015/jan/insurance-premium-surcharges-for-tobacco-use">face challenges</a> when shopping for insurance that meets their health needs. </p>
<p>Smokers face a double jeopardy when it comes to purchasing insurance. Under the ACA, insurance companies can charge smokers up to <a href="http://publichealthlawcenter.org/sites/default/files/resources/tclc-fs-aca-&-tobacco-control-2014_0.pdf">50 percent more</a> for health insurance premiums. While the ACA <a href="https://www.healthinsurance.org/obamacare/will-you-receive-an-obamacare-premium-subsidy/">provides subsidies or tax credits </a>for many people with low incomes, the premium surcharge for smokers is <a href="http://www.commonwealthfund.org/publications/blog/2015/jan/insurance-premium-surcharges-for-tobacco-use">not adjusted based on income</a>. </p>
<p>In addition, smokers who are below 100 percent of the poverty level fall in the <a href="http://kff.org/health-reform/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid-an-update/">“coverage gap”</a> in states that have not expanded Medicaid. In this coverage gap, they must pay full price for health insurance premiums in the marketplace, in addition to the smoking surcharge.</p>
<p>The <a href="https://www.healthinsurance.org/faqs/will-smokers-be-unable-to-afford-insurance-under-the-aca/">smoking surcharge</a> was created to allow insurance companies to recover costs incurred by smokers, but it has the unintended consequence of pricing many low-income smokers out of the market altogether. </p>
<p>As someone who studies health disparities and as a clinician who has led smoking cessation groups, I see a troubling trend. Many smokers <a href="http://kff.org/health-reform/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid-an-update/">cannot afford</a> insurance that covers the costs of smoking cessation programs. </p>
<p><a href="https://theconversation.com/up-in-smoke-well-spend-billions-tomorrow-for-not-helping-poor-people-quit-smoking-today-60686">Smoking is one of the hardest habits to quit</a>, often requiring many attempts before someone quits successfully. Almost everyone who smokes, rich or poor, needs help doing so, and they need support to help pay for the health care they need. The health care law should help smokers quit smoking and seek needed health care, but my research indicates that this may not occur due to the high costs of insurance for smokers. </p>
<h2>Lower incomes and higher health care needs</h2>
<p>Since smokers tend to have <a href="http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6302a2.htm">lower incomes</a> than nonsmokers, the costs associated with coverage mean low-income smokers are restricted in their health insurance options. They may choose a plan with fewer upfront monthly costs, which can end up costing more in the year if they have high health care needs. </p>
<p>Or, they may choose to remain uninsured. Of the uninsured adults in the United States, <a href="http://www.cdc.gov/tobacco/data_statistics/fact_sheets/adult_data/cig_smoking/">37 percent are smokers</a>, even though smokers account for only 17 percent of the total U.S. population. </p>
<p>In addition to the high cost of coverage, smokers often have <a href="http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/effects_cig_smoking">more chronic health needs</a> and greater health care use compared to nonsmokers. So, while low-premium insurance plans may be in a suitable monthly price range for low-income smokers, these plans miss the mark in providing adequate coverage. And they fail to ensure low costs throughout the year <a href="https://publichealth.wustl.edu/wp-content/uploads/2016/07/The-Effects-of-Smoking-on-Health-Insurance-Decisions-under-the-ACA.pdf">as smokers use care</a>. </p>
<h2>How does this affect smokers’ health insurance choices?</h2>
<p>To understand the financial effects of choosing marketplace plans, my team and I analyzed the choices of 327 smokers and nonsmokers who lived in a state, Missouri, that did not expand Medicaid. The people we included were part of a larger study evaluating a <a href="http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4754978/">decision tool to support individuals’ health insurance marketplace choices</a> – something I’ve <a href="https://theconversation.com/the-less-you-know-about-health-insurance-the-harder-it-is-to-choose-the-right-plan-44545">written about previously</a> for The Conversation. </p>
<p>Among the 327 people, more than half (65 percent) were uninsured. Furthermore, 58 percent of smokers and 46 percent of nonsmokers had household incomes below the federal poverty level (in 2016, poverty level was <a href="https://aspe.hhs.gov/poverty-guidelines">about US$12,000 for an individual and $24,000 for a family of four</a>). </p>
<p>Insurance in the federal marketplace is organized into four coverage categories, called <a href="https://www.healthcare.gov/choose-a-plan/plans-categories/">tiers</a>. Each tier bears the name of a metal – bronze, silver, gold and platinum. Bronze is the lowest priced category, then silver, then gold, then platinum. <a href="https://www.healthcare.gov/choose-a-plan/plans-categories/">Platinum policies</a> typically have the highest premiums.</p>
<p>Just as the price goes up from each metal tier to the next, the coverage <a href="https://www.healthcare.gov/choose-a-plan/plans-categories/">benefits</a> generally improve, also. Thus, the bronze plans, while typically lowest priced, also typically will pay less when a person incurs a health care cost. The consumer therefore pays more out-of-pocket expenses.</p>
<p>In our <a href="https://publichealth.wustl.edu/wp-content/uploads/2016/07/The-Effects-of-Smoking-on-Health-Insurance-Decisions-under-the-ACA.pdf">study</a>, many smokers wanted to choose silver plans, where insurance pays <a href="https://www.healthcare.gov/glossary/health-plan-categories/">about 70 percent</a> of the cost of care. The <a href="https://www.healthcare.gov/glossary/health-plan-categories/">majority of smokers</a>, or 59 percent, stated they would select a silver plan in the marketplace.</p>
<p>Fewer nonsmokers, or 42 percent, wanted silver plans. Usually, nonsmokers chose bronze plans with lower premiums but higher deductibles, where insurance only pays about 60 percent of the cost of care.</p>
<p>Smokers’ increased likelihood of having chronic health needs may have contributed to their preference for silver plans, since the plans permit more health care use at a lower cost, despite the slightly higher monthly premium. </p>
<h2>Premiums for low-income smokers may exceed their annual income</h2>
<p>On average, our research showed smokers would have to spend 14 percent of their annual income to purchase their plan choice. In contrast, non-smokers had to spend 7 percent of their income on their choice. Moreover, smokers below the poverty level would have to spend 165 percent of their annual income on premiums – exceeding the amount they earn in a year. </p>
<p>Smokers earning below the federal poverty level (FPL) could opt for different plans, but other plans had an average cost of 180 percent of their annual income. Given that the majority of smokers <a href="http://www.foxbusiness.com/features/2013/07/22/burned-smokers-earn-175-less-than-non-smokers.html">are low-income</a> and many have incomes <a href="http://www.gallup.com/poll/105550/among-americans-smoking-decreases-income-increases.aspx">close to the FPL</a>, health insurance at these rates can be unattainable. </p>
<p>To date, <a href="http://familiesusa.org/product/50-state-look-medicaid-expansion">19 states</a> have not expanded Medicaid. That means that people in those states who earn less than 100 percent of the poverty level, but are not eligible for Medicaid, are also not eligible for financial help in the federal insurance marketplace. </p>
<p>For <a href="http://familiesusa.org/product/50-state-look-medicaid-expansion">nonexpansion states such as Missouri</a>, where this study was conducted, low-income uninsured smokers who are not eligible for Medicaid would be left uninsured if they could not afford insurance in the marketplace. </p>
<p>The health care law’s mandated coverage provision allows for exemptions from having to buy insurance when the cost of the <a href="https://www.law.cornell.edu/uscode/text/26/5000A">cheapest plan</a> is greater than 8 percent of one’s income. Being uninsured, however, comes with its <a href="http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2881446/">own set of perils</a>.</p>
<p>At an individual level, being uninsured may lead to poor health and increased health care costs over time. And at a societal level, it may widen income-based health disparities.</p>
<p>It can also lead to a <a href="https://theconversation.com/up-in-smoke-well-spend-billions-tomorrow-for-not-helping-poor-people-quit-smoking-today-60686">higher cost down the road</a>, when millions of smokers are treated for smoking-related illnesses. </p>
<h2>Cessation: A good idea for surcharges, too</h2>
<p>Perhaps the best way to remedy this burden on low-income smokers is to remove tobacco surcharges on premiums. Making cigarettes <a href="https://theconversation.com/big-tobacco-aims-its-guns-to-kill-california-tobacco-tax-63750">less affordable through taxation</a> is one thing. It’s quite another to make health insurance unaffordable – especially when it runs counter to the goal of the health care law. </p>
<p>Among smokers covered by insurance, the presence or absence of surcharges does not appear to significantly <a href="http://content.healthaffairs.org/content/35/7/1176.full">impact cessation rates</a> among smokers. Thus, the view that surcharges may be an incentive for smokers to quit may need to be revisited. </p>
<p>The health care law requires coverage of tobacco cessation services such as phone counseling, group and individual counseling, and medications without out-of-pocket costs to consumers. <a href="http://www.nejm.org/doi/full/10.1056/NEJMp1411437#t=article">Uncertainty among physicians and patients</a> about coverage guidelines suggests this feature is not used to its full potential. With appropriate clarification and advocacy, coverage for smoking cessation may help smokers to quit while also allowing them access to insurance to cover the costs of needed health care.</p>
<p>Smoking continues to be the <a href="http://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/">number one preventable cause of death</a>. To continue to make progress in smoking cessation rates, smokers must be supported by the health care system through the process of quitting. We need to make it possible for smokers to purchase affordable, adequate health insurance so they can receive support quitting smoking while also addressing their health care needs.</p><img src="https://counter.theconversation.com/content/63156/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Politi received funding for this research from the National Institute on Minority Health and Health Disparities (NIMHD) of the National Institutes of Health (NIH) under Award Number R01MD008808. The funding agreement ensured the authors’ independence in designing the study, interpreting the data, writing, and publishing the report.
Denise Monti, BA, Marie Kuzemchak, BA, and Nageen Mir, MPH assisted in the writing of this piece.</span></em></p>To discourage smoking, insurance companies charge higher premiums for smokers. This is having an unexpected consequence: rather than quit smoking, poor people are quitting insurance.Mary C Politi, Associate Professor of Surgery, Division of Public Health Sciences, Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.