Trump Administration, Republican Attorneys General Ask Supreme Court to Repeal ACA

This story has been updated.

The Trump administration yesterday asked the Supreme Court to repeal the Affordable Care Act (ACA, also known as Obamacare) stating "the entire ACA act must fall," hours after Republican state attorneys general, the coalition challenging the law, filed its briefs in the case. Overturning the ACA was a key campaign rallying point for President Trump in 2016 and Republican lawmakers have largely opposed the law since its inception in 2010.

Despite the economic crisis due to the coronavirus disease 2019 (COVID-19) pandemic, Trump in May promised to continue fighting the ACA, stating “We want to terminate health care under Obamacare.” The case is expected to go before the Supreme Court in the spring of 2021.

In a statement, House Speaker Nancy Pelosi (D-CA) condemned the request. "President Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty," she stated.

In 2017, Trump eliminated the individual mandate—the heart of the ACA that requires everyone to have health coverage and lays the groundwork for a risk pool that is more balanced between the sick and the healthy and the young and the old. Subsequently, in 2019 the Fifth Circuit of the United States Court of Appeals ruled the mandate unconstitutional.

The filing accuses the ACA of inflicting “classic pocketbook injuries on the states,” in addition to preventing states from enforcing their own laws and policies.

“Congress deliberately designed the ACA and its goal of expanding healthcare coverage around the individual mandate,” the brief reads. “Without the mandate, the guaranteed-issue and community-rating provisions not only malfunction but result in the opposite of what Congress intended.” The filing urges the Supreme Court to affirm the statutory text deeming the individual mandate essential.

Attorney General Ken Paxton of Texas filed the brief along with 17 attorneys general from Alabama, Arizona, Florida, and other states. “Congress declared in the text of the law that the individual mandate is the centerpiece of Obamacare. Without the unlawful mandate, the rest of the law cannot stand,” Paxton said in a statement. “Obamacare has failed, and the sooner it is invalidated, the sooner each state can decide what type of health care system will best provide for those with preexisting conditions, which is the way the Founders intended.”

The move has been met with fierce opposition, particularly from those who decry reducing insurance coverage in the middle of a pandemic. In response to the impending briefs, House Democrats yesterday unveiled legislation intended to boost the ACA.

The Patient Protection and Affordable Care Enhancement Act aims to expand access to health care, lower Americans’ health coverage costs, negotiate lower prescription drug prices, and incentivize holdout states to adopt Medicaid expansion.

“It’s commonsense legislation that takes the savings from lower prescription drug costs and invests it into lowering health care premiums and expanding access to affordable care,” said Health Committee Chairman Frank Pallone Jr, D-New Jersey, in a statement. “All around, that’s a win for the American people. We must take action to lower these soaring costs, expand access to health care, rein in the Trump Administration’s efforts to sabotage the ACA and protect people with pre-existing conditions.”

An analysis released by CMS yesterday found during April and May 2020, more individuals took advantage of the special enrollment period (SEP) on HealthCare.gov to gain coverage compared with the same time period in 2019. "By month, the largest gain in loss of minimum essential coverage SEP enrollments occurred in April 2020, with enrollments increasing by 139% when compared to April 2019," the report reads.

Although the fight to repeal and replace Obamacare has been a rallying cry for conservatives during past elections, some Republicans have revealed concerns that the current timing of the move may not serve voters’ interests in the upcoming 2020 presidential election.

“Politically, it’s pretty dumb to be talking about how we need to repeal Obamacare in the middle of a pandemic,” Republican strategist Joel White told The New York Times. “We need quick solutions here; we need stuff that we can do tomorrow, because our countrymen are hurting.”

Experts in the health industry, citing racial and economic disparities laid bare by the COVID-19 pandemic, argue striking down the ACA would lead to more dire consequences.

“The ACA has had a tremendous effect and without the ACA, we would be in even worse shape right now heading into this double whammy of a public health crisis and an economic crisis,” Larry Levitt, MPP, executive vice president for health policy at the Kaiser Family Foundation told The American Journal of Managed Care^®.

“Without the ACA, we would have upward of 20 million more people uninsured, and there would be no safety net as people are battling these [issues], as people are losing their jobs and their health insurance.”

In a commentary published by the Center on Budget and Policy Priorities, authors noted that the repeal of ACA was expected to cause 20 million individuals to lose coverage, but with the added COVID-19 crisis, that number will likely increase, especially if the United States enters a recession.

“Forecasts predict that economic hardship will continue through next spring, when the Supreme Court will render its decision. At that time, with unemployment projected to be about 10% and more people relying on Medicaid expansion and the marketplace’s premium assistance, many more people could lose coverage than projected pre-crisis,” authors wrote. Meanwhile, repealing the ACA would cut taxes for the top wealthiest 0.1% of the country by an average of $198,000, an additional report found.

An analysis conducted by the Center also concluded that repeal of the ACA would worsen racial disparities in health care, a widespread crisis brought into stark relief by the pandemic. According to estimates, implementation of the ACA narrowed disparity gaps in coverage and access to care among black and Hispanic Americans.

A report from the Urban Institute determined that without the added stress of a pandemic, repealing the ACA would result in a loss of coverage for 1 in 10 black individuals and 1 in 10 Hispanic individuals, compared with 1 in 16 white individuals. “The result is that about 1 in 5 Black people and nearly 1 in 3 Hispanic people would be uninsured," if the act is repealed.

When it comes to COVID-19, researchers argue that repealing the ACA would not only limit coverage but cut also funding for the CDC and public health efforts, end the requirement that all insurers cover services like vaccines without cost sharing, and allow insurers to rescind coverage if someone develops health problems associated with an undisclosed preexisting condition.

“The Administration and state attorneys generals’ effort to repeal the ACA through the courts has always threatened health and financial hardship for millions,” the authors concluded. "Doubling down on it in a time of crisis only adds to what would be devastating results.”