(CNN)This country is stuck with Obamacare. Republicans can’t find the votes to repeal or replace it. Democrats can’t agree on how to make it better. President Donald Trump just wants to move on from it. But it’s so ingrained at this point that if the courts suddenly end it, it could completely disrupt the US health insurance system — and not just for people who buy insurance on the exchanges created by the law.
The Trump administration’s about-face endorsement of a federal judge’s December decision in Texas that the Affordable Care Act is unconstitutional could create an untenable situation since, essentially, all Americans with health insurance have Obamacare now.
Invalidating the entire law could strip coverage from tens of millions of Americans and strip protections for coverage enjoyed by hundreds of millions more. CNN’s Tami Luhby has documented exactly how the law touches every American — not just the more than 20 million who have obtained Medicaid or insurance through a state or federal health insurance exchange.
The fact is that exactly nine years after its passage, the Affordable Care Act, sometimes referred to as “Obamacare,” has remade the US health insurance system.
No sign of a White House plan
Despite Trump’s tweet Tuesday that the GOP will become “the Party of Healthcare!”, his pledge to take care of people with pre-existing conditions, and his complaint Wednesday that health care coverage is too expensive, it is increasingly, glaringly, alarmingly clear that the White House has no plan for what comes next if courts ultimately agree that the Affordable Care Act is now unconstitutional.
“The Department of Justice is part of the executive branch, and the President has faith in his Department of Justice to do the right thing,” senior adviser Kellyanne Conway told reporters Tuesday. “And we’re watching litigation. We don’t predict the outcomes of litigation like that. We’ll see what happens.”
It’s a law that touches every American and gives millions of people coverage — and we’ll see what happens?
There’s a good chance the Supreme Court will ultimately weigh in, a process that could take years. But the new harder stance from Trump’s Justice Department gave the case renewed and immediate interest.
“I’m flabbergasted,” John Kasich said Tuesday after the court filing. He’s a Republican former Ohio governor who has emerged as a frequent Trump critic and is now a CNN contributor. As governor, he took federal money for Ohio to expand Medicaid under the law even though he has long pointed to its problems. But Kasich said the country has to address the problems, not cut out the old law. He’s pushed a proposal hashed out with a bipartisan group of governors.
“These things can all be fixed, but you don’t need to just rip coverage away from 20 million people,” he said. “That’s ridiculous.”
How to undo something that’s part of society
The main trunks of the law are a massive expansion of Medicaid and a total re-creation of the individual insurance market, but it mandated new protections in the group insurance market, forcing insurers to cover Americans with pre-existing conditions and allowing insured people to keep covering their adult children up to age 26.
It also rewrote rules for Medicare, for hospitals and for prescription drug coverage.
“People have forgotten what it was like before the Affordable Care Act,” said Gary Cohen, the vice president of government affairs for Blue Shield of California, one of the country’s largest insurers. Before that he worked in the Obama administration and helped implement the Affordable Care Act.
“Not only if you were sick, but if you had ever been sick, you were priced out” and charged differently than other individuals, Cohen said.
To Trump’s point that health care still seems too expensive, Cohen agreed that prices are too high, but he argued they would be higher without the Affordable Care Act.
“I’m sure that people aren’t focused on what the trend in health care was before and after, but there’s a lot of research that the prices have moderated,” he said.
While the administration now supports invalidating the entire law through the courts, how the Affordable Care Act would be undone is causing experts to scratch their heads.
“The Affordable Care Act is now so woven into the rest of the health care system that trying to take it out could upset things that were not even related,” Julie Rovner of Kaiser Health News said Tuesday on CNN.
States have spent years modifying their Medicaid programs around the Affordable Care Act, for instance. That process continues as the states that have not accepted Obamacare funding to expand Medicaid with federal dollars slowly move in that direction now that the government is allowing them waivers from certain requirements or to impose new rules that people work before qualifying to receive Medicaid.
“You think about how long the bill was and how many regulations have been put in place around the law over that nine-year period. It affected every source of how people get health care,” said Sara Collins, a vice president at the Commonwealth Fund, which researches health care issues and pushes for improvements to the health care system.”
“I cannot overstate how disruptive this would be,” she said.
Trump’s quest to end the Affordable Care Act
Trump’s efforts along with Republicans on Capitol Hill to repeal the law failed in 2017, but his administration’s attempts to chip away at it have continued, most importantly when they used a new tax law to lower the tax assessed for not having health insurance to $0.
It is the lowering of the penalty that kicked off this latest drama. The judge in Texas agreed with a group of Republican state attorneys general that a $0 tax isn’t a tax and so Chief Justice John Roberts’ tortured decision upholding the Affordable Care Act was thrown into jeopardy. That’s a turn of events worthy of a mystery novel. What will happen to Obamacare next!?
That John Roberts, who — thanks to a new book by CNN’s Joan Biskupic — we know vacillated on how to deal with the law the first time around, might now be invested in it.
Opponents of the law said the possibility of it being undone should be a wake-up call to Congress to fix it.
“The DOJ’s announcement is yet another data point that Congress needs to pass legislation that helps, not harms, Americans’ ability to achieve their goals of lower health care costs, better choices, and access to care when they are sick,” said Marie Fishpaw of the conservative Heritage Foundation, who endorses a plan that would give more power to states.
American voters respond to health care
Democrats paid a political price for passing the Affordable Care Act, losing control of the House of Representatives in a wave of backlash and conservative anger.
Then Republicans paid a political price for coming so close to repealing it, losing control of the House last fall, and 41% of voters said in exit polls that the most important issue facing the country was health care. Democrats bombarded swing districts with ads about health care and warnings about the threat of losing insurance market protections like the ban on insurance companies excluding people with pre-existing conditions.
At the same time, 69% of voters in 2016 said the health care system needs major changes. Those sentiments have given Democratic presidential candidates new energy to push the health care system further left, with new proposals for a public health insurance option or even a socialized health care system where the government takes over the insurance market. That debate was temporarily sidelined Tuesday as Democrats rallied around protecting the Affordable Care Act.
More recently, American voters say by 55% to 32% that they’d rather improve the current health care system than replace it, according to a new Quinnipiac survey. Those results were published in the context of the debate pushed by Democrats about whether to move toward a single-payer health insurance system, but they’re interesting in terms of the possibility the Trump administration could go in the other direction and have the entire Affordable Care Act invalidated. The number of Americans with favorable views of the law itself has grown and hovered around 50% in recent years, according to the Kaiser Family Foundation, as the percentage of Americans with unfavorable views has fallen below 40%.
Red states moving toward Medicaid
The effort to undo the law in the courts continues even as more red states find ways to expand Medicaid under it. Kasich was among the first Republican governors to buy into the almost entirely federally funded expansion of Medicaid, and he has defended that decision ever since.
But even more conservative governors are following suit, especially now that the federal government is agreeing to special waivers from rules for accepting the money, like requiring the insured to work.
There were developments in Georgia this week, for instance, where the GOP-controlled Legislature gave new power to the Republican governor.
Fourteen states have rejected the expansion of Medicaid envisioned by the Affordable Care Act. They’re mainly in the South, although Wisconsin is also represented. Every one of them supported Trump in 2016. But 16 states that supported him have expanded Medicaid.
In all, 4.9 million people who would otherwise be eligible for Medicaid under the Affordable Care Act aren’t currently. Some of those qualify for help to buy private insurance, but more than 2.5 million are caught in a technicality of the law: They make too much to qualify for Medicaid but not enough to qualify for help to buy private insurance. Nearly half of these in the so-called coverage gap are spread across Texas and Florida, according to the Kaiser Family Foundation.
Even as red states come around and take Medicaid funds, it doesn’t mean the Republicans who run those states will be supporting the law anytime soon, but it could make it so much more difficult for so many more people if the courts suddenly take it away.