By Wendell Potter, Rural Health News Service

Battle over Obamacare shifts to the states

We’ve heard relatively little from Washington in recent months about the Affordable Care Act, but that doesn’t mean our elected officials have forgotten about it or that its future is certain. Republican lawmakers still say the plan forces Americans to buy health insurance they may not want or need and that many may not be able to afford. Democrats say its benefits outweigh any downside.

These days, the battleground over the law’s fate has shifted, at least temporarily, from Congress to the states.

Many of the country’s state attorneys general are now squaring off against each other the way attorneys often do: with litigation. One of their lawsuits would have the effect of repealing the law, sometimes called Obamacare, while the other would keep it intact.

The first shot was fired in late February when a group of 20 Republican state officials filed a lawsuit that if successful would, in their words, “end the grip of Obamacare.”

Nineteen Republican attorneys general, plus Maine Governor Paul LePage, also a Republican, contend that Congress opened the door for their lawsuit when it repealed the penalty that most Americans have to pay if they don’t enroll in a health insurance plan.

Texas Attorney General Ken Paxton, the leader of the group, said when he filed the lawsuit in a federal district court in Fort Worth that “when Congress enacted President Trump’s tax overhaul, it rendered all of Obamacare unconstitutional by doing away with the tax penalty in Obamacare’s individual mandate.”

He called the law a “failed experiment” that he said should be replaced “with a plan that would seek to create more lower-cost health insurance options.

The other group of attorneys general, led by California AG Xavier Becerra, contends that the ACA has been upheld by the Supreme Court and that doing away with the penalty to remain uninsured didn’t alter that fact. He and 15 other Democratic attorneys general filed a motion in early April to try to block the Republicans’ lawsuit from moving forward.

“The Texas lawsuit is based on a dubious legal claim with the sole goal of stripping Americans of their healthcare,” Becerra said in a press release. “To roll back the clock and risk the health of millions of Americans is irresponsible and dangerous. We can’t and we won’t go back.”

If the GOP group prevails in district court, their opponents would probably appeal, and the fate of the ACA likely would once again be in the hands of the U.S. Supreme Court. Here is what would go away if the high court sides with the Republican AGs.

• Pre-existing conditions: Before the ACA, health insurers could charge people with pre-existing conditions considerably more than people without them. Insurers also could and frequently did refuse to sell coverage to many applicants at any price because of their health status. Federal data revealed that before the ACA, many insurers often turned down a third or more of their applicants. Since the ACA went into full effect, insurers can no longer base premiums on a person’s health status, and they can no longer refuse to sell coverage to anyone because of a pre-existing condition.
• Gender: Before the ACA, insurers charged many women, especially those of childbearing age, more than men for policies they sold on the individual market. The ACA made it unlawful for insurers to charge women more than men for the exact same policy.
• Young people: Before the ACA, in most states insurers could and typically did remove children from their parent’s policies when they turned 19. Since the ACA, young people can stay on their parent’s policies until they turn 26 if they can’t get coverage through an employer.
• Older people: Before Obamacare, insurers in most states could charge people in their 50s and 60s five to 10 times as much as younger people for the same policy. (Some states had no limit.) Since the ACA, insurers cannot charge older applicants more than three times as much as they charge younger ones.
• Low and middle-income people: Before the ACA, many Americans remained uninsured because of the cost of health insurance. Since the ACA, several million Americans have enrolled in Medicaid plans in the 33 states (including the District of Columbia) that expanded their Medicaid programs. Several million others earning between 100 and 400 percent of the federal poverty level are eligible for subsidies to help them pay for their premiums and, in some cases, to lower their out-of-pocket costs.

If the Republican attorneys general win their lawsuit, those provisions of the Affordable Care Act would no longer be in effect.

While Paxton did not specifically address those or other features of the ACA when he filed the lawsuit, he did say that abolishing the law “would give President Trump and Congress an opportunity to replace that failed experiment with a plan that ensures Texans and all Americans have better choices for health coverage at more affordable prices.”

He did not speculate on which if any of the ACA’s provisions might be restored or how long it might take for Congress to enact a replacement bill.

Are you wondering how the lawsuit over the ACA might affect the future of your healthcare?
Send me your questions, concerns and personal stories at Wendell@tarbell.com.

Wendell Potter is a former health insurance executive, author and founder of the journalism nonprofit Tarbell.org.