Eric Davis: GOP threatens the health care of millions

Ten years ago this week, President Barack Obama signed the Patient Protection and Affordable Care Act (ACA) into law. As the United States faces its greatest public health crisis in a century, the Trump Administration is actively supporting an effort by Texas and other states to have the entire ACA struck down in federal court, with nothing to replace it.
The ACA, often known as “Obamacare,” provides protection to far more than the 20 million Americans who purchase health insurance for themselves and their families on federal or state exchanges such as Vermont Health Connect. Major provisions of the ACA that are under threat by the pending lawsuit affect nearly all Americans.
The largest group to receive benefits from the ACA are those Americans — 135 million people, or over 40 % of the population — who have a pre-existing condition that would require them to pay much higher rates for insurance, or not be able to obtain insurance at all.
Without the ACA, the expansion of Medicaid, which has extended coverage to more than 17 million people, would be rolled back. Many of these recipients would not be able to afford replacement coverage.
If the entire ACA were struck down in court, the Medicare prescription drug “doughnut hole” for senior citizens would get larger, requiring up to 12 million older Americans to pay more for their prescription drugs. Nearly 3 million young adults between the ages of 18 and 26 would lose continued access to coverage through their parents’ policies. Insurance companies would be able to charge older people and women more than younger people and men for health coverage. 
The benefits in the ACA go not only to individuals, but to institutions as well. The ACA provides key support for rural hospitals, including most of the community hospitals in Vermont. Without this support, these hospitals might well have to reduce services, at the same time as they would be expected to serve more uninsured patients.
Republicans and affiliated interest groups have been challenging the ACA in federal court since it was passed. In 2012, the Supreme Court upheld most of the law by a vote of 5-4, with Chief Justice John Roberts joining the four justices appointed by Democratic presidents. The Court held that, because the ACA’s mandate for individuals to have health insurance was enforced by a tax penalty on the uninsured, the ACA was a permissible exercise of Congress’ constitutional power to lay taxes “for the general welfare.”
The Trump/GOP tax act of 2017 reduced that tax penalty to zero. Soon thereafter, a group of 18 states, led by Texas and all with Republican governors and/or attorneys general, filed a new lawsuit claiming that the effective repeal of the tax penalty removed the constitutional justification used to uphold the ACA in 2012. Most experts on health care law believe that this argument has little legal merit.
The most recent decision in Texas v. United States was from a three-judge panel of the Fifth Circuit Court of Appeals, which ruled in favor of the Republican states by a 2-to-1 majority. Earlier this month, the Supreme Court agreed to put this case on its docket for the term beginning in October. 
Normally, the Justice Department defends the constitutionality of federal statutes that are challenged in court. However, the Trump Administration has refused to do so in the case of the ACA. Thus, the defense of the ACA before the Supreme Court will be presented by a group of 21 largely Democratic states, coordinated by California and including Vermont. The House of Representatives will also defend the constitutionality of the ACA in the Supreme Court.
Briefs in this case will be due sometime in late summer or early fall, during the election campaign. The Trump Administration’s support of ACA repeal should be an issue that receives considerable attention from likely presidential nominee Joe Biden and Democratic congressional candidates.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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