Two things can be true at once: While President Donald Trump uses his daily coronavirus briefings to talk about the federal government’s response to the pandemic, his administration is also seeking to invalidate the Affordable Care Act (ACA) in court, which means 300,000 Minnesotans could lose access to health care during or after the COVID-19 outbreak.
“What we want to do is terminate it,” Trump said of the Affordable Care Act late last month.
A group of 20 states, led by Texas, sued the federal government in 2018. Their goal: strike down the ACA. Congress ended penalties for not registering for health care in 2017, the so-called “individual mandate,” which the group of states argue renders the whole law unconstitutional in Texas v. U.S. In December, a federal appeals court agreed, ruling that the individual mandate, without a penalty imposed by Congress, is unconstitutional. The Supreme Court is now considering whether it should hear the case.
What’s unusual about the case is that the federal government under Trump has refused to defend parts of the ACA. Instead, in court, they’ve agreed with Texas that the individual mandate is no longer constitutional. The Trump administration has gone further than the states, arguing that the ACA’s protections for pre-existing conditions should be struck down.
State AGs step in
Because of the administration’s refusal to defend the law, in May, more than 15 attorneys general were allowed to join the case to defend the ACA, including Minnesota Attorney General Keith Ellison.
“In a time of global pandemic, what Minnesotans in every community and region need is access to high-quality health care that they can afford. What they absolutely don’t need is the ACA struck down or repealed,” Ellison said on a press phone call marking the 10th Anniversary of the ACA’s passage in March.
Around 300,000 Minnesotans gained health care coverage through the ACA, two-thirds through expanded Medicaid coverage and the rest through enrollment via the ACA marketplace.
“I voted for the ACA in Congress and voted against repealing it more than 70 times,” Ellison said. “Now as Minnesota attorney general, I’m in court defending it for the millions of Minnesotans it protects, because it’s my job to protect Minnesotans when the Trump administration won’t.”
In April of 2019, Democrats in the House passed a resolution condemning the Trump administration’s stance on the ACA and support for the lawsuit. The resolution, H.RES.271 or “Condemning the Trump Administration’s Legal Campaign to Take Away Americans’ Health Care,” passed 240 to 186. One Democrat voted no: Rep. Collin Peterson of Minnesota’s Seventh Congressional District.
But eight Republicans also switched sides to vote with Democrats. Rep. Pete Stauber was one of those eight. In the past, Stauber has criticized the Affordable Care Act, but says using a lawsuit to repeal it, without a replacement, is the wrong approach.
Of Minnesota’s congressional delegation, Stauber is the only Republican to have expressed concern about the president’s plan. The other two, Reps. Jim Hagedorn and Tom Emmer, have been silent.
“The congressman has always promised to protect those with pre-existing conditions,” said Stauber’s press secretary, Kelsey Mix. “Although he did not agree with the tone of the resolution, he did agree that the provisions in law under the ACA protecting health insurance for those with pre-existing conditions should not be invalidated.”
What comes next?
The drive to end the Affordable Care Act in the midst of a pandemic threatens to inject more chaos into an already haphazard system. Even with the Affordable Care Act, census estimates say that 27.5 million people in the U.S. were uninsured in 2018.
“The U.S. performs worse than average among similarly large and wealthy countries across nearly all measures of preparedness for a pandemic,” Cynthia Cox, director of the Peterson-Kaiser Health System Tracker, told Vox. “The coronavirus outbreak is already exposing inefficiencies and inequities in our health system, and it is likely to put much more strain on the system in the coming weeks.”
Democrats too, have plans to change the Affordable Care Act, but those plans do not include a repeal of the law without a replacement.
Of the Democrats that are left in the Democratic primary, two options for potential expansions on the ACA exist. Former Vice President Joe Biden’s health care platform would add a new public option for Americans without private coverage, but it would not offer universal coverage. With “Medicare for All,” Sen. Bernie Sanders would expand benefits to the point of medical expenses being paid by the Federal government. Premiums and out of pocket costs would be eliminated, but at the cost of increased taxes. (Update: Sanders dropped out of the race Wednesday morning.)
A Republican replacement of the ACA could look like a bill they passed in 2017, the American Health Care Act. That bill would have only partially repealed the ACA, cut Medicaid, and cut mechanisms that reduce deductibles. The only Republican in the delegation who was in Congress at the time the AHCA came up is Emmer, who voted for the bill. Although it passed the House with a slim Republican majority, it failed to pass in the Senate.
Andy Slavitt, who was part of the team that fixed Healthcare.gov after a botched rollout, said that all of this isn’t new. He said that Republicans, like Trump and Senate Majority Leader Mitch McConnell, have been trying to dismantle the ACA prior to the coronavirus.
“Politics as usual isn’t going to go away even in the case of the worst crisis our country’s ever faced,” said Slavitt, who served as Acting Administrator of the Centers for Medicare and Medicaid Services under President Barack Obama.
Slavitt, who split his time between D.C. and Edina for years, has been staying home during the pandemic, but continuing to engage with policymakers. He has also been sharply critical of the Trump administration’s refusal to open up a “special enrollment period,” which was created as a part of the ACA and would allow more Americans to enroll in health insurance coverage even if they have not lost a job.
But the greater problem in his mind is the lawsuit. The consequence of invalidating the ACA, he said, should be obvious:
“A lot more people would die. I mean that’s as simple as that,” he said. “A lot more people would die. And a lot more hospitals would go bankrupt more quickly. And they probably end up spending more money trying to plug the holes in the dike, than they would with the Affordable Care Act, which is actually quite a reasonable deal for taxpayers.”