WASHINGTON—For Julia Skapik, an M.D. who works at a community health clinic in Northern Virginia and sees many people struggling to pay their medical bills, keeping the Affordable Care Act as law of the land is nothing more than “common sense.”
“Why would you want to make it [health care coverage] more expensive and unpredictable?” she asks.
Answering that question, by preserving the 10-year-old law and its protections against denial of coverage and care, brought Skapik and more than 100 other people to the steps of the U.S. Supreme Court on Nov. 10.
Meanwhile, the justices—not sitting inside, but holding the hearing by Zoom, due to the coronavirus pandemic—heard red states and the GOP Trump regime try to talk the court into throwing the law out.
The peaceful group out front was there to let the court know the practical consequences of the scheme by GOP Oval Office occupant Donald Trump and the party as a whole to kill the health care law.
At least one speaker, Maura O’Reilly of the Sunrise Movement, laid the blame for the ACA’s peril on private industry—specifically insurers and their capitalist backers—and their quest for profit, aided and abetted by Trump.
“Trump stacked this court to chip away at any chance of reasonable health care,” she said of the court’s six-GOP-named justice majority “in order to benefit the private insurance companies at the cost of harming the people,” she declared.
In the court session itself, lawyers for the ACA’s foes argued that because Congress reduced the tax on people who don’t buy health insurance coverage from $700 to zero, it effectively made the entire law unconstitutional. They argued that because that one section—the tax the justices used last time to justify upholding the law–is not “severable” in legal language, from the rest.
In other words, if that tax section is unconstitutional, the whole law is, too.
But in an early report from the continuing court session, two of those GOP-named justices, Chief Justice John Roberts and Trump-named Associate Justice Brett Kavanaugh, appeared skeptical.
“I tend to agree with you that it is a very straightforward case under our precedents, meaning that we would excise the [tax] mandate and leave the rest in place,” Kavanaugh told lawyers for California and other blue states who defended the law. “Congress left the law intact when it lowered the penalties to zero,” Roberts said. “That seems to be compelling evidence on the question.”
California, blue states, and the U.S. House’s ruling Democrats, along with the Service Employees, AFSCME, both teachers unions, and progressive organizations, retort that Congress built in the severability clause, and thus could toss the $700 tax without tossing the whole law.
That would let stand the law’s protections for pregnant women, people with pre-existing conditions, children of insured parents up to age 26, and its mandate that insurers could not deny coverage or impose lifetime limits on an individual’s or a family’s benefits.
And that was the same point the group outside the court, made.
Speaking from an M.D.’s perspective, Skapik said in an interview that even with the ACA on the books and the improvements it brought in coverage, “we still have really bad outcomes” in health care.
“Cost becomes an unnecessary bar” to care, she explained.
“I saw a patient last week with a broken foot. They [the family] didn’t know if they could see a doctor because the deductible was $250.” The family had a terrible choice, she added: “Are they going to pay that bill” and skimp and omit other needs, “or are they going to let it slide and be sent to collections?
“Or are they not going to get the foot fixed and” have the patient “be limping for the rest of their life?
“We see people at the clinic who are much sicker than they need to be. They can’t afford and don’t get vaccines, so they get influenza. They delay care” for pre-existing conditions “until they collapse and the ambulance has to take them to the hospital, where they go into the ICU,” she added.
That’s not cheap, either. Before the ACA was passed, Maura O’Reilly of the Sunrise Movement told the crowd, “I had a seizure at home” from what was later diagnosed as epilepsy, and an ambulance took her to the hospital. “I barely remember anything about that stay,” she said.
“But I do remember a $945 bill for a five-minute ambulance run and a $26,400 bill for a one-night hospital stay. And one other thing I learned: Epilepsy is a ‘pre-existing condition’” which insurers refuse to cover.
She added one other frustration with the U.S. health care non-system: Its paperwork “is an unintelligible nightmare.”
None of those real-life stories penetrated the oral argument on the case, Texas v California, representing the red-state coalition attacking the ACA and the blue-state alliance defending it.
The case is the latest of a string of Republican legal challenges to the law, which Democratic President Barack Obama pushed through Congress on party-line votes, with his then-Vice President, Joe Biden, lobbying lawmakers hard and successfully for it.
Biden, now the President-Elect, promises to keep and expand the ACA. The House’s then-ruling Republicans tried more than 60 times to kill it but failed in the Senate. So the GOP turned to friendly federal judges in red states to do the dirty work.
AFSCME, both teachers unions, the National Employment Law Project, the National Women’s Law Center, and the Coalition of Labor Union Women, among others, discussed the health care issues the law tried to fix, in their friend-of-the-court brief.
“Although latent health disparities persist, the ACA has significantly improved the health and economic independence of women, including women of color. Among other advances, more women and children are insured, women’s use of preventive services has increased as fewer women report cost as a barrier to obtaining care, and maternal and infant mortality rates, which are at crisis levels for Black and Native women and children, have begun to decline in Medicaid-expansion states,” their brief said.
“Texas takes the extraordinary position that in reducing the tax associated with the ACA’s individual-responsibility provision to zero in the Tax Cuts and Jobs Act of 2017 (TCJA)”—the Trump-GOP tax cut for corporations and the rich–Congress implicitly revoked the ACA in its entirety. But Congress was well aware of the advancements in health coverage and health outcomes attributable to the ACA and demonstrably did not intend to revoke them in the TCJA.”
“To the contrary, Congress repeatedly reassured the public the TCJA would not affect the rest of the ACA, and even subsequently amended the ACA and appropriated billions of dollars to ACA programs —actions that would be illogical if Congress intended to revoke the ACA’s protections by its passage of the TCJA. Indeed, Congress had previously rejected multiple attempts to repeal the ACA in whole or part,” meaning the GOP’s 60-plus repeal votes when they ran the U.S. House.
Outside the court on a sunny warm November day, the ACA supporters were hopeful, but also wary.
That’s because the last time the court ruled on the ACA, the vote upholding it was 5-4—and one of those five, Justice Ruth Bader Ginsburg, is dead. She’s been replaced by Trump nominee Amy Coney Barrett, whose academic writings showed hostility to the ACA. Indeed, Dr. Skapik carried a handmade sign on a piece of cardboard that read “ACA not ACB” on one side.
And Sarah E. Raskin, a professor of health care policy at Virginia Commonwealth University, provided another contrast between Trump’s negative impact on the nation’s health—through his refusal to battle the coronavirus pandemic—and the ACA’s positive pull.
“Lives lost under Trump/McConnell COVID [coronavirus] ‘plan,’ 239,000 and counting,” it read, referring not just to the Oval Office occupant but to his lapdog, GOP Senate Majority Leader Mitch McConnell, who follows Trump in trying to kill the ACA, putting Barrett on the High Court and more.
“Lives gained under Medicaid expansion, 2014-17: 19,200 at a minimum,” Raskin’s sign added. She got that figure—which covers just one benefit of the ACA—from the progressive Center on Budget and Policy Priorities. It’s also low, she noted: “It covers just people in those years aged 50-65.”
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