Stacy M. Brown

Barrett’s Inevitable Confirmation and the Potential Death of Obamacare

With the inevitable confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court, many people believe her appointment almost certainly signals the Affordable Care Act’s end.

Barrett is already on record saying that an earlier vote to uphold the law “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

And while President Donald Trump and Senate Republicans have pushed for nearly four years to strike down the law known as Obamacare, they still have not presented an alternative.

More than 22 million Americans will lose coverage if the court strikes down the law. That figure doesn’t include potentially millions more who have already lost their employer-provided health coverage during the coronavirus pandemic.

Additionally, adult children under age 26 would lose the right to remain on their parents’ health plans and Medicare patients would lose enhanced prescription drug coverage. Women would lose guaranteed access to birth control at no out-of-pocket cost.

The high court plans to hear arguments on Nov. 10.

An NPR report noted that “a sudden elimination would affect more than just patients. Insurance companies, drug companies, hospitals and doctors all have changed the way they do business because of incentives and penalties in the health law.”

If the Affordable Care Act [ACA] is struck down, many of the “rules of the road” would be wiped away, including billing and payment mechanisms.

It’s noteworthy that a new Democratic president still could not drop the lawsuit because Republican attorneys general – not the Trump administration – serve as the plaintiff.

However, a Biden win and a Democratic Congress could “in theory make the entire issue go away by reinstating the penalty for failure to have insurance, even at a minimal amount, says Nicholas Bagley, a law professor at the University of Michigan specializing in health issues, who added, “the Affordable Care Act now dangles from a thread.”

Dr. Giuseppe Aragona, a general practitioner and family doctor at PrescriptionDoctor.com, said he’s concerned for many of his patients currently covered by Obamacare and who may soon have to look for other plans.

“There are reports of over 4.1 million Americans signed up to new plans this year, which is a 12 percent decrease from last year,” Dr. Aragona noted.

“The judge will rule on the fate of Obamacare but it is looking like a replacement is going to be needed for the people who are on the plan, if the Affordable Care Act is going to be deemed as unconstitutional. A lot of people rely on the act, and without it, they may not be able to afford another plan, leaving them in a very dangerous situation, which could cost them their life,” he added.

Health care expert Seth Denson said it’s essential to understand the specifics about the case that the Supreme Court will hear next month.

The Constitutionality of the individual mandate will be determined because, in 2018, Judge Reed O’Connor, a federal judge in Texas, ruled that the individual mandate, a result of the Tax Cuts & Jobs Act, is no longer constitutional.

Denson noted that when Obamacare first came before the high court, Chief Justice Roberts, who wrote the majority opinion, was the swing vote upholding the ACA’s mandate. He did so, stating the penalty found in the ACA wasn’t a penalty, but a tax.

The 2012 argument stated that the ACA violated the Commerce Clause and that the government couldn’t require individuals to buy something.

“However, Justice Roberts upheld the law saying the Congress has the right to tax and the ACA did not require someone to buy health insurance, rather it imposed a tax which could be avoided by purchasing health insurance,” Denson stated.

In 2017, Republicans passed the Tax Cuts & Jobs Act which, reduced the penalty/tax to $0.

Texas and multiple other states then argued that because the tax was no longer in place, the ACA was therefore in violation of the commerce clause and unconstitutional.

Judge O’Connor agreed, and the 5th circuit upheld the ruling but O’Connor stayed it so as not to destabilize the healthcare market.

The second component of the case judges will hear next month is “severability.”

“In their haste to pass the ACA in 2009, Democrats failed to include severability language in the draft of the law,” Denson said.

He explained that severability, in short, is a process where if one part of the law is found unconstitutional, it can be severed from the remainder of the law.

This provision isn’t part of the ACA.

“The 5th circuit did not rule on whether the individual mandate can be severed and sent it back to the lower court for further clarification; however, SCOTUS is expected to weigh in on this as well,” he offered.

“Judge Barrett has called into question the constitutionality of the ACA but that isn’t what the case in front of SCOTUS will address in a few weeks,” Denson continued.

“What’s being argued is the mandate and whether it is severable from the ACA as a whole. We’ve yet to hear that question put to her. Additionally, she’s unlikely to give a valid answer on that topic since she isn’t on the bench yet and she doesn’t have access to documents and arguments that her fellow justices do.

Denson attested that one could look at Judge Barrett’s previous commentary for guidance, like when she dissented from the majority opinion striking down President Trump’s public charge rule during which she concluded, “litigation is no the vehicle for resolving policy disputes.”

“With regards to pre-existing conditions, it’s highly unlikely that they will ever be part of our healthcare system again – as my father says, the ‘toothpaste is out of the tube’ meaning that it would be political suicide to allow them into the conversation,” Denson determined.

“To that end, there has not been any Republican advocating for the elimination of protections for pre-existing conditions.”

“I don’t think that the ACA will be overturned. The tax is still in place, it’s just zero dollars. I’d gladly pay a $0 tax. The GOP-led Congress could not completely remove the mandate as they didn’t have a ‘super majority;’ therefore, they were regulated to passing a budgetary bill. The budgetary bill couldn’t remove the language. It could only reduce the tax – something that Biden has already stated he would bring back if elected president.”

“While I do believe the ACA will be upheld, and thus pre-existing conditions protected, this just highlights the need for President Trump to release a plan for healthcare – not a marketing piece or a list of executive orders – rather a plan that he will propose to Congress if re-elected.”

“In the plan, he could outline all that he wants to do to lower healthcare costs, improve upon the ACA and protect pre-existing conditions. If he doesn’t, Democrats own the narrative and they are certainly coming after him and his SCOTUS nominee,” Denson said.

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Stacy M. Brown

I’ve worked for the Daily News of Los Angeles, the L.A. Times, Gannet and the Times-Tribune and have contributed to the Pocono Record, the New York Post and the New York Times. Television news opportunities have included: NBC, MSNBC, Scarborough Country, the Abrams Report, Today, Good Morning America, NBC Nightly News, Imus in the Morning and Anderson Cooper 360. Radio programs like the Wendy Williams Experience, Tom Joyner Morning Show and the Howard Stern Show have also provided me the chance to share my views.

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