ACA 2019 Repeal Again. New Trump Strategy.

At President Trump’s request, AG William Barr on March 25, 2019 released a legal arrow targeted at repealing the Affordable Care Act (ACA). In bypassing Congress, Trump’s aim is to achieve his presidential campaign promise (and apparently regardless of the human cost). Trump has thus far seated 53 District Court and 30 Appellate judges, as well as two Supreme Court justices.1 An intentional strategy championed by Republican Senate Leader McConnell, the number of federal judges appointed by Trump has already exceeded the pace of the last five presidents.2

For anyone who believes that healthcare access is fundamental to our nation’s future, this is cause for alarm. Described below are the Congressional Budget Office (CBO) determinations of the number of people that were expected to lose health insurance if any of the ACA “repeal and replace” bills in 2015 and 2017 had been enacted. Additionally described are some Trump Era judicial decisions that can destabilize the US healthcare system within the next year. Hospital and physician implications for a court-ordered eradication of the ACA are also described.

CBO Conclusions – More Uninsured People Across the US

In response to the first ACA repeal attempt by Republicans in Congress– titled the American Health Care Act (AHCA) – the CBO in June of 2015 released its report on the consequences of Senate passage of this bill. This report stated that “the number of nonelderly people who are uninsured would increase by about 19 million in 2016; by 22 million or 23 million in 2017, 2018, and 2019; and by about 24 million in all subsequent years through 2025…”.3

The Better Care Reconciliation Act (BCRA) of 2017 was the next Republican congressional attempt to dismantle the ACA. Reported by the CBO was that 15 million more people would be uninsured by 2018 (climbing to 26 million by 2026).4 The third attempt was the “skinny repeal” in 2017, and the CBO still calculated that 16 million more people would be uninsured by 2026.5

Elimination of ACA by Court Order – The Biggest Potential Losers

Adults who are part-time workers (or unemployed) are widely-recognized as most likely to be uninsured.6 Ninety percent of restaurant workers in the US still remain ineligible for health insurance coverage through their employers – although 4 percent of the US GDP is generated by the restaurant industry. 7 Furthermore, the CDC in 2018 listed the following three occupations as among those with the highest proportion of uninsured workers: 8

  • Construction
  • Farming
  • Fishing

Moreover, 36 percent of all US workers are now working in the “gig” economy as contract workers9 – and therefore also not receiving any employer-sponsored health benefits.

The prevalence of a noninsured status among working adults aged 18-64 decreased by 21 percent subsequent to establishment of the ACA exchanges.10 Having no health insurance has been strongly linked by public health researchers to both a lack of access to recommended healthcare and worse health outcomes.11

Low-Wage Workers, Small Business Employees, and the Self-Employed:

Low-wage workers, small business employees, and the self-employed have historically been the labor force subpopulation most likely to forego health insurance. By requiring companies with a minimum of 100 full-time workers (who work 30 hours or more) to provide health insurance coverage – in tandem with the Medicaid expansion – the ACA has enabled more of this subpopulation to be insured.

Medicaid Recipients:

Among the single biggest potential losers if the ACA is eliminated are those who were able to obtain health insurance coverage due to the ACA’s Medicaid expansion. This stems from the reality that impoverished people are the most likely to be afflicted with disabling and chronic health disorders requiring ongoing medical management. In fact, back pain or severe asthma can make working impossible – and thereby create a vicious cycle of unemployment, poverty, and lack of adequate medical care.

(According to the Kaiser Family Foundation, a decrease in the uninsured population of 9.3 percent through 2017 occurred in Medicaid expansion states, as opposed to a decrease of only 3.7 percent in the states that did not expand Medicaid.12)

Risk to Coverage for Preexisting Conditions and Coverage for Young Adults

Recognizing the two provisions’ broad public support, President Trump promised in February, 2019 (in his State of the Union address) to protect coverage for young adults up to age 26 and for preexisting conditions.13 Congressional Republicans also realized that most Americans “got it” that the pre-ACA ability of private insurers to refuse or limit coverage based on preexisting conditions was just plain unfair.

Indeed, an article in Consumer Reports in 2017 noted that personal bankruptcies – most often precipitated by a health catastrophe resulting in high medical bills – decreased substantially following ACA enactment.14

Meanwhile, parents of new college graduates were relieved that – due to the applicable ACA provision – their young adult offspring could remain on their private health plans until age 26. In accordance with widespread public sentiment, the Republican-sponsored “repeal and replace” plans in 2015 and 2017 did not seek to undo these two provisions of the ACA.

In marked contrast, declaring the ACA unconstitutional would eliminate the entire ACA – including these two popular provisions.

Judicial and Policy Decisions under Trump – Emboldened Conservatism and Discrimination

 Medicaid work requirements (which have been embraced by Trump cabinet appointees) were fortunately struck down in March, 2019 by an Obama-nominated federal district court judge. This was the final step after most Republican-led states were emboldened by Trump policies to require Medicaid recipients to perform work (for a specified minimum number of hours per month) or lose their state-administered Medicaid coverage.

In Arkansas alone – between August and December in 2018 – 18,000 Medicaid recipients were disenrolled due to not meeting that state’s newly-enacted work requirement (now overturned by the aforementioned district court ruling).15

Guidance on Federal Law Protections for Religious Liberty:

On October 6, 2017, the US Department of Justice (DOJ) issued federal guidelines in a memorandum  – Federal Law Protections for Religious Liberty – to enable exemptions of federal agencies from providing services (including healthcare) based on religious objections. In this manner, the DOJ was able to promote a broad capacity to discriminate against LGBT and other marginalized people.16 In turn, the DHHS in 2018 published a rule allowing any employers with religious objections to contraception to apply for a federal waiver from providing contraceptive insurance coverage to employees.17

Targeting LGBT People and Muslims:

In 2018, a Supreme Court case – in which the DOJ sided with a Colorado baker who refused to create a wedding cake for an LGBT couple on the basis of religious beliefs – resulted in a ruling in favor of the baker.18 In a 5-4 decision in 2018, Trump’s travel ban targeting specific Muslim-majority countries was also upheld by the Supreme Court.19

Targeting Women of Child-Bearing Age:

In February of 2019, Trump issued a final rule defunding Planned Parenthood. Focused on women’s health for the past 102 years, Planned Parenthood serves millions of women across the US with breast and cervical cancer screening, STD and HIV testing, contraceptives, prenatal care, and – in some of its facilities – abortions.20

Narrowing the Separation of Church and State:

With so many highly conservative judges appointed in Republican-controlled states and also by Trump, the separation of Church and State in the coming decade may be far more compromised than ever before in US history.

 Can Hospitals and Medical Providers Cope with ACA Elimination?

 Reverting nationwide to the de facto healthcare system – albeit dysfunctional – that existed before the ACA is simply not possible. This is because certain changes (such as the development of Accountable Care Organizations [ACOs] and value-based payment models) have ensured that there is no going back to the past. Instead, elimination of the ACA will result in millions of under-insured (and uninsured) people seeking help in hospital Emergency Rooms (ERs), thereby generating an unsustainable pressure on hospitals to provide more non-reimbursable care.

If the ACA is eliminated, there is no way that many thousands of preventable and needless deaths will not occur within only a few short years – and especially among low-income people, African-Americans, Latinos, pregnant women, and newborns.

No, hospitals and medical providers cannot shoulder the burden if the ACA is suddenly eliminated as unconstitutional. Yes, there will be healthcare system chaos.

 Conclusion – Public Health in the US at Risk

The Trump Administration is succeeding in shifting the federal courts in a rightward direction. Concurrently, by bypassing the Legislative Branch, Trump and his DOJ have carved out a way toward eliminating the ACA without congressional or public participation. As Texas v. the United States winds slowly upward toward the Supreme Court, we need to hope that at least five of the nine justices will recognize that eliminating the ACA as unconstitutional is nothing short of madness.

Sadly – on the horizon (and for decades) – an overall bleaker future looms for millions of Americans, thanks primarily to Trump and his current (and impending) lifetime-appointed, Federalist Society right-wing judges.

 References:

  1. Levine, Marianne. (January 2, 2019). Trump’s judicial nominees face setback. Politico Webpage: https://www.politico.com/story/2019/01/02/trump-judicial-nominees-1077658
  2. Johnson, Carrie. (January 2, 2019) Trump’s Judicial Appointments Were Confirmed At Historic Pace In 2018. National Public Radio (NPR). Webpage: https://www.npr.org/2019/01/02/681208228/trumps-judicial-appointments-were-confirmed-at-historic-pace-in-2018
  3. Congressional Budget Office (CBO). (June 19, 2015). Budgetary and Economic Effects of Repealing the Affordable Care Act. Webpage: https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50252-effectsofacarepeal.pdf
  4. Congressional Budget Office (CBO). (July 20, 2017). H.R. 1628, the Better Care Reconciliation Act of 2017: An Amendment in the Nature of a Substitute. Webpage: https://www.cbo.gov/publication/52941
  5. Hellmann, Jessie. (July 27, 2017). CBO: 16 million more uninsured under GOP ‘skinny’ repeal. The Hill Webpage: https://thehill.com/policy/healthcare/344264-cbo-16-million-would-lose-coverage-under-gop-skinny-repeal
  6. McWilliams JM. (2009). Health consequences of uninsurance among adults in the United States: Recent evidence and implications. Milbank Quarterly 87(2): 443-494. Webpage: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2881446/
  7. Mealey, Lorri. (Updated August 10, 2018). Can Your Restaurant Afford Employee Health Insurance? The Balance Small Business Webpage: https://www.thebalancesmb.com/health-insurance-cost-in-restaurants-4140306
  8. Centers for Disease Control (CDC). (June 1, 2018). Health Insurance Coverage by Occupation Among Adults Aged 18–64 Years — 17 States, 2013–2014. Morbidity and Mortality Weekly Report (MMWR) 67(21): 593-598. Webpage: https://www.cdc.gov/mmwr/volumes/67/wr/mm6721a1.htm
  9. McCue, TJ. (August 31, 2018). 57 Million U.S. Workers Are Part Of The Gig Economy. Forbes Magazine Webpage: https://www.forbes.com/sites/tjmccue/2018/08/31/57-million-u-s-workers-are-part-of-the-gig-economy/#156ed1367118
  10. Centers for Disease Control (CDC). (June 1, 2018). Health Insurance Coverage by Occupation Among Adults Aged 18–64 Years — 17 States, 2013–2014. Morbidity and Mortality Weekly Report (MMWR) 67(21): 593-598. Webpage: https://www.cdc.gov/mmwr/volumes/67/wr/mm6721a1.htm
  11. McWilliams JM. (2009). Health consequences of uninsurance among adults in the United States: Recent evidence and implications. Milbank Quarterly 87(2): 443-494. Webpage: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2881446/
  12. Kaiser Family Foundation (KFF). (May 23, 2018). Implications of the ACA Medicaid Expansion: A Look at the Data and Evidence. Webpage: https://www.kff.org/medicaid/issue-brief/implications-of-the-aca-medicaid-expansion-a-look-at-the-data-and-evidence/
  13. Cunningham, Paige W. (February 6, 2019). President Trump promised to protect coverage for preexisting conditions in his State of the Union address in 2018. The Washington Post Webpage: https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2019/02/06/the-health-202-trump-places-health-care-at-center-stage-in-state-of-union-address/5c59e88f1b326b66eb098628/?utm_term=.db7759462b22
  14. St. John, Allen. (May 2, 2017). How the Affordable Care Act Drove Down Personal Bankruptcy. Consumer Reports Webpage: https://www.consumerreports.org/personal-bankruptcy/how-the-aca-drove-down-personal-bankruptcy/
  15. Froelich, Jacqueline. (February 18, 2019). In Arkansas, Thousands Of People Have Lost Medicaid Coverage Over New Work Rule. National Public Radio (NPR) Webpage: https://www.npr.org/sections/health-shots/2019/02/18/694504586/in-arkansas-thousands-of-people-have-lost-medicaid-coverage-over-new-work-rule
  16. American Civil Liberties Union (ACLU). (October 6, 2017). ACLU Statement on Department of Justice Licensing Discrimination in the Name of Religion. Webpage: https://www.aclu.org/news/aclu-statement-department-justice-licensing-discrimination-name-religion
  17. Center for American Progress. (April 3, 2018). Religious Liberty for a Select Few. Webpage: https://www.americanprogress.org/issues/lgbt/reports/2018/04/03/448773/religious-liberty-select/
  18. Groppe, Maureen. (Updated January 19, 2018). First Year of Trump-Pence Brings Bountiful Blessings, Religious Conservatives Say. USA Today Webpage: https://www.usatoday.com/story/news/politics/2018/01/19/first-year-trump-pence-brings-bountiful-blessings-religious-conservatives-say/1044308001/
  19. Liptak A, and Shear MD. (June 26, 2018). Trump’s Travel Ban Is Upheld by Supreme Court. New York Times Webpage: https://www.nytimes.com/2018/06/26/us/politics/supreme-court-trump-travel-ban.html
  20. Ollstein, Alice. (February 22, 2019). Trump administration issues rule to strip millions from Planned Parenthood. Politico Webpage: https://www.politico.com/story/2019/02/22/planned-parenthood-funding-trump-1164038