Another existential threat to the Affordable Care Act in the midst of the COVID-19 pandemic

April 16, 2020

Having health insurance is essential to getting early diagnosis and treatment.  And if we’ve learned one thing during this coronavirus crisis, it’s that early diagnosis and treatment isn’t just important for the individual affected, it’s important for all of us. That’s why I was so troubled this week when, during a press conference, President Trump reaffirmed his support for a Texas lawsuit—set to be reviewed by the U.S. Supreme Court this year–that threatens to eliminate the entire Affordable Care Act.

The Affordable Care Act just turned 10 years old.  The Act’s successes are well documented – the steep reduction in the numbers of uninsured Americans from 15.4% in 2009 to 9.5% in 2018; the fact that coverage is now available to those with pre-existing conditions who were unable to get it before; the fact that preventive services are now covered in full with no cost-sharing for consumers; and the fact that fewer people report not getting needed medical care because of cost than they did before the ACA.  That last fact could not be more important as we face the most critical public health issue of our lifetimes – the coronavirus.

The Texas lawsuit I’m referring to—the one that President Trump supports—was filed in February 2018 by 18 Republican Attorneys General and 2 Republican Governors who challenged the constitutionality of the Affordable Care Act in light of the 2017 tax bill that eliminated the tax penalty for individuals who did not enroll for minimum health coverage under the ACA.  The plaintiffs argued that without the penalty, the mandate was unenforceable as a tax, and that since the entire ACA relied on the mandate, the law itself should be struck down. In December of 2018, a federal judge in Texas agreed with the plaintiffs and determined the entire ACA to be invalid

Many of the judge’s legal rulings were criticized by both conservative and liberal legal scholars. And the case was immediately appealed. But the Trump administration sided with the plaintiffs and supported the ACA being struck down in its entirety.  In December 2019, the appeals court determined that the individual mandate was unconstitutional but made an inconclusive ruling on the constitutionality of the rest of the ACA. And earlier this month, the Supreme Court agreed to take up the case in its next term.

There is no question that the Texas lawsuit poses an existential threat to the ACA. And, there is also no question that that threat could not come at a worse time. The full story of the coronavirus is yet to unfold.  But, one thing that the coronavirus makes clear: health care coverage is a public health measure.

With a disease as infectious as the coronavirus, we need public health measures to protect us all.  The coronavirus doesn’t skip infecting people just because they are uninsured. And uninsured people are just as likely to infect others as are people with insurance. It is essential to all of us that people who are sick get tested early to both save their lives and protect others from being infected.

Unfortunately, financial barriers keep people from seeking need medical care. The first phase emergency measures that Congress put in place to address the coronavirus acknowledged how much cost can be a deterrent to care by making sure that there would be no copays for people getting tested

One issue the Congressional measures did not address is the fact the thousands of Americans who get the coronavirus will now be considered to have a “pre-existing” condition. The emergency measures don’t need to address that issue because the ACA is in place today and Americans with pre-existing conditions are protected from losing health coverage because of the ACA. But, if the Trump administration has their way, the ACA will go away; the health care system will face further chaos and there is no certainty that a replacement will be put in place to protect the millions likely to be infected with this virus over time. There is simply no doubt that the ACA is essential to our fight against the coronavirus. Now is the time to be expanding the ACA, not throwing it away.