When the Supreme Court meets at the end of June, one of the cases that they will hear is King V. Burwell, which will decide the fate of the Affordable Care Act, the key legislation of President Obama, and his signature legacy after he leaves office. But, Republican opposition is old news, and the Act has been under their attack from almost its inception, who have branded it with almost every negative label possible, joined by a public that never really understood it, and simply decided that it was bad legislation that had to be jettisoned. Now, after several legal hurdles, it has reached the Court for its final challenge.
The Act — colloquially known as Obamacare – mandates that all Americans must have healthcare, and is predicated on subsidies so that people without employer provided coverage, or government means tested programs such as Medicaid, or Medicare, can be covered, despite low incomes; making health care, and most of all, preventable care, a reality. A short reading of the law stipulates that those subsidies can be given, or be made available, only in those states that have established their own marketplaces, not those created by the federal government. Currently, only 13 states and the District of Columbia have their own.
Already, the coalitions are forming and people are taking their positions before the justices can finish reading their briefs. In one corner is the Obama administration that says that the whole problem can be solved if Congress would change the wording of the law and delete the reference limiting it to states that establish their own marketplaces, and include all, plus those who use the federal exchanges to shop for coverage. He also said, “If somebody does something that doesn’t make any sense, then, it’s hard … to fix,” suggesting that an alignment between the Court and his Republican opposition leaves him no wiggle room. But, critics charge that the president has also not revealed any contingency plans that he might have created.
The Republicans say that this change will never happen: “Let’s be clear: If the Supreme Court rules against the administration, Congress will not pass a so-called one-sentence’ fake fix,” said Sen. John Barrasso (R-Wyo.), who has been working on a Republican response to the case. “Republicans didn’t create the ongoing mess,” reported the Los Angeles Times a week ago.
A Washington Post/ABC News poll found that a majority of the American public does not want the subsidies blocked for people in states without their own exchanges: “55 percent, does not want the court to block federal subsidies for people in states that have not set up their own exchanges. Only 38 percent said they wanted the subsidies ended,” reported The Hill .
Only California, and 12 other states, plus the District of Columbia, have their own exchanges, and for other states to do so would be next to impossible, and would require states to collect fees from insurance companies, and also pay the feds for use of their website, healthcare.gov, a prospect that seasoned observers and politicians say is not feasible in the current partisan climate.
Oregon, Nevada and New Mexico have their own marketplace, and use the federal website to allow consumers to purchase health plans. Depending on how the Court writes its ruling, that approach could protect their residents. But, for those states that would like to establish their own, the cost would be prohibitive, as their predecessors used $4 billion dollars in federal aid. Approval would also be contingent on gubernatorial assent and with most state legislatures controlled by the GOP, an enormous barrier exists, and that, plus a lengthy process, makes creation nearly impossible.
In December the Illinois legislature refrained from even considering legislation to create a marketplace, and now with the election of Republican governor, Bruce Rauner, it seems unlikely that the subject could even be broached as he battles the Democrats for dominance over a budget for the upcoming fiscal year.
If the Supreme Court does invalidate the subsidies, the result will be 6.4 million people without health care. And, those affected the most, will be middle and low-income people, who do not have employer provided health insurance. As Christopher Hansen, president of the American Cancer Society’s Cancer Action Network remarked, “The consequences of losing the financial assistance that makes health insurance affordable would be absolutely devastating for low- and middle-income people with a disease such as cancer.”
Weiss Memorial Hospital located in Chicago’s Uptown neighborhood, whose residents have a median income of $50,037, and a low to middle class patient base, making them vulnerable to elimination of the subsidies, refused to comment when asked, and in an emailed statement, Sonja Vogel, director of marketing, said, “We won’t be speculating about the outcome of the case or any potential impact it may have.”
“We are definitely worried, and know that at least 80 percent of our clientbase will be [negatively] affected, and are trying to beef up our federal subsidies, should that happen,” said a well-placed official with a large midwestern social service agency, but declined to be named because he was not authorized to speak publicly on the pending legislation.
Kellee Terrell, a communications writer for the Howard Brown Health Clinic, a storied health care provider, for Chicago, and one of the nation’s largest LGBT organizations, and a major primary care clinic for Chicago residents, did not respond by publication deadline with a requested statement.
Some states are prepared if the subsidies are removed, but many are not. Only Pennsylvania and Delaware have made contingency plans. The others have Republican governors who are against the Act and oppose any actions to support it. The Times also reported that “groups opposed to Obamacare have pressured state legislatures not to expand health coverage under the law.”
Then there are those Republicans fearing a backlash from the public, and who are hoping that the justices decide in favor of the law, so that they do not have to face the ire of angry constituents who will have lost their healthcare. But, another consequence is that the insurance markets will mostly be in chaos, “and set off a blame game between the Obama administration and congressional Republicans”, noted the Times.
Mitch McConnell,(R-KY) the Senate majority leader, has publicly stated, “We’ll have a plan that makes sense for the American people”, and will allow them “a voice in what our healthcare system will look like.” But, those statements also belie a lack of consensus among he and the working group established to create a counter move.
Recently, Senator Ron Johnson (R-WI) has proposed a solution, if the Court decides against the subsidies, yet most are not new alternatives, except for the extensions through 2017, and, of course, no new enrollees. The others are to repeal the individual and employer mandate; repeal the federal essential health benefits that plans are required to cover under the ACA: and, most of all, according to the Center for American Progress, to “expand the grandfather provision, undermining the ACA’s consumer protections.”
There are “some pre-existing insurance plans that did not meet the ACA’s requirements were temporarily grandfathered in to minimize disruption to enrollees. The Johnson bill would expand this provision, creating a massive loophole around many of the ACA’s consumer protections, including the ban on insurers discriminating against people with pre-existing conditions,” thus in effect gutting the law, concluded the Center in its report.
The Court, at this time, has given no indication as to how it will rule, but for millions of Americans, the potential for loss of basic health care is both real, and apparent.