The Public Health Law Watch initiative identifies potential legislative and regulatory changes that have an impact to harm public health but have yet to break into the mainstream conversation, identifies ways to engage on these issues, and provides legal analysis and commentary.

Trump returns Obamacare to the crosshairs and we are all in peril

Trump returns Obamacare to the crosshairs and we are all in peril

By Robert I. Field, Ph.D., J.D., M.P.H.  

The Trump administration has returned with renewed vigor to its war against the Affordable Care Act. If the attack succeeds, the damage would touch almost all of us.

The latest line of attack is to side with the plaintiffs in a lawsuit challenging the law, who are urging an appeals court to strike down the entire ACA as unconstitutional. Originally, the administration had argued that only the protections for individuals with preexisting medical conditions should be tossed out.

This latest step is highly unusual. It ignores the time-honored bipartisan practice of presidential administrations to defend federal laws against legal challenges, even laws with which they disagree. It is rarer still for an administration to actively side with a challenge. And it is extraordinary for one to harden its position while a challenge is proceeding.

If the administration’s new stance prevails, almost everyone would feel the catastrophic effects. Its original position was destructive enough in pulling health insurance from millions of people who are sick. Its new position would wreak havoc throughout most of American health care.

Among the biggest losers would be millions of adult children kicked off their parents’ coverage, hundreds of hospital partnerships known as accountable care organizations forced to close, millions of seniors again facing the infamous doughnut hole in Medicare prescription coverage, and thousands of patients unable to buy cheaper generic versions of expensive specialty drugs. And, of course, millions of poor and disabled patients who would lose access to health care in states that expanded Medicaid.

All of this comes after the ACA has achieved remarkable success in reducing the number of uninsured, its popularity is at near record levels, and it has strengthened much of the health care industry.

The administration’s action doesn’t even have a coherent legal rationale. Its new argument defies both law and logic.

The argument goes that because the Supreme Court upheld the law’s mandate to obtain insurance as a tax, repeal of the tax by Congress in 2017 eliminated its constitutional basis. And because the mandate is central to the law’s overall scheme, it cannot be severed from the other provisions and everything must go.

This argument makes little sense. The Supreme Court ruled that as a tax, individuals are in full compliance whether they choose to pay the tax or to obtain coverage. With the amount of the tax now set at zero, everyone has automatically complied. In other words, the mandate as a compulsion to obtain coverage has disappeared. How can it be unconstitutional if it no longer exists?

Even if the now nonexistent mandate were found to be unconstitutional, Congress has expressed a clear desire to retain the rest of the law without it. Just a few months before voting to eliminate the tax, it rejected proposals to repeal the law in its entirety. If it had wanted all of the law to fall, it would have voted in favor of full repeal, not against it. In fact, the ACA’s insurance exchanges are continuing to function quite well without the mandate, providing coverage to millions of people.

Even if the mandate were found to be essential to the insurance coverage provisions, it is clearly not central to many of the law’s other elements that have nothing to do with insurance. How, for example, is it central to requiring calorie counts on restaurant menus?

Might anyone benefit from the new assault on the ACA? It’s hard to image who they would be.

Certainly not the millions of patients who would lose access to health coverage and pay higher prices for drugs. And certainly not the hospitals whose partnerships to improve the quality and efficiency of care would dissolve, the insurance companies that would see markets for individual policies disappear, or the drug companies whose generic specialty drugs could no longer be sold.

And probably not Trump’s fellow Republicans, who could face voters next year as the anti-health care party.

Trump can’t seem to keep the ACA out of his crosshairs, and his scorched earth policy could burn everyone. He might not care, but millions of Americans should.

 

This blog post first appeared in the Health Cents blog on Philly.com

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About the author: Robert I. Field is a member of the Inquirer’s Health Advisory Panel, and nationally known expert in health care regulation and its role in implementing public policy. He holds a joint appointment as professor of law at the School of Law and professor of health management and policy at the School of Public Health at Drexel University.


Join us this week at NUSL's Annual Health Law Conference!

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