You will be forgiven if you'd forgotten that open enrollment in Affordable Care Act (ACA) individual policies opened up on Nov. 1. An awful lot has happened in the last 10 days. But it did, and as HealthCareInsider analyzes, it's in good shape. Despite the epidemic, premium costs are steady and even Trump's Centers for Medicare and Medicaid Services (CMS) reports that the average monthly premiums for the benchmark plans (the second-lowest-cost silver plan) dropped by 2% from last year. They'll be $1,486 for a typical family of four in 2021, before subsidies. So that's all good and you should definitely check out Healthcare.gov or your state's exchange if you’re in the market for health insurance.
That's particularly important this year with the U.S. Supreme Court set to hear the extremely weak but highly politically charged challenge to the law today, Nov. 10. One week after the election. It is exceedingly consequential—it's the coverage for about 23 million people between the private plans and Medicaid. It's coverage of preexisting conditions for as many as 130 million people and counting since the coronavirus came along. It's the new foundation for pretty much the entire healthcare system in the United States at this point, and the Supreme Court that Sen. Mitch McConnell engineered for Donald Trump could throw it all away.
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Never mind that this case is, as health law professor Nicholas Bagley writes "laughably weak." The Republican states are arguing that when the Republican Congress and Donald Trump zeroed out the individual mandate in the ACA in their tax scam bill, they didn't also remove the language accompanying the fine—the instruction that people "shall" purchase insurance. The red states argue that keeping that language without the tax is so coercive that it is unconstitutional, so much so that it invalidates the entirety of the law. Which is laughable, but Republican courts are gonna be Republican courts so it got all the way to the damned Supreme Court, which did not summarily dismiss it. So here we are.
Bagley believes it's a long shot at the Supreme Court and he's probably right. The legal underpinnings for this case are very, very wobbly. Starting with whether the challengers even have standing to bring the case—is anybody actually injured by the individual mandate when it's just words? When there's literally no penalty for not having health insurance? Then whether the zeroed out mandate is a constitutional tax (as the SCOTUS decided in 2012) even if it's set at $0. If it is, the ACA survives intact. If it's not, if they think a $0 tax is unconstitutional, can that provision just be struck down, severed from the rest of the law so that the remainder of it stands? The Republican states and the Trump administration argue, speciously, that yes, absolutely nothing else in the law is valid if that $0 tax is unconstitutional. The Supreme Court is likely to think that's just too much.
Chief Justice John Roberts is unlikely to want to be defined as the guy whose court took health insurance away from millions of Americans in the middle of a pandemic. Surprisingly, Justice Brett Kavanaugh has also written extensively about being cautious in overturning more of the law than is necessary. It's uncertain where Neil Gorsuch, who's given Trump a handful of defeats, will land. The safest bet is that they'll decide that yes, the $0 tax penalty is not constitutional but that it can be severed from the rest of the law and will stand. Again, the politics of this election and the fact that we're in the middle of a pandemic—and still will be when they're writing their decision next year—make it more likely than not that they uphold the law. We'll know an awful lot more about where they're leaning when we hear their questions to lawyers today.
Because what they're considering is just so consequential. Bagley: "The Medicaid expansion, which covers 12 million poor people in 33 states, would evaporate. Healthcare.gov would go dark. Federal subsidies that keep coverage affordable would vanish. Most of the 10.7 million people who bought insurance on the exchanges would see their costs skyrocket, forcing millions to drop coverage." And again, the millions and millions of people with preexisting conditions could be denied coverage again, just like in the bad old days before the law. The prescription drug coverage gap that makes medicine affordable for people on Medicare would be gone, as would numerous programs that have saved Medicare billions of dollars in the past decade. Free preventive care and screenings would be gone.
If the Republicans keep the two Senate seats going to a runoff in Georgia there won't be an easy fix, either. Too many of the extremists in the Senate are either up for reelection in 2022 and need to stave off primary challenges for the right, or think they can be president in 2024. They make it unlikely that McConnell would allow a fix to come to the floor, because he won't bring a bill that the majority of his conference opposes. He's not going to give Joe Biden any wins, no matter the cost to the country. That's just who he is.
So here're our marching orders: Spread the word to get more people signed up to Obamacare, and spread the word to help get these last two seats and the Senate majority.