* One week after Election Day, the Supreme Court will hear a lawsuit, backed by the Trump administration, that seeks to vacate the ACA entirely…The Supreme Court nominee “will be the deciding vote on health care,” [Sen.] Casey said in an interview last week, noting 1 million Pennsylvanians have gained health coverage and 5.5 million have pre-existing conditions protected by the law. “These are big stakes.”
* Health care was already a top issue in Pennsylvania and other swing states before the COVID-19 pandemic hit in March. Pittsburgh’s economy has grown with health innovations, a thriving insurance industry and social services to care for an aging population.The Biden campaign has tried to highlight flaws in Mr. Trump’s response and downplaying of the dangers of the pandemic, whose death toll passed 200,000 Americans last week.
* If the ACA were to be struck down and altered, “the costs that will be paid are human ones,” Lindsay Bracale, a spokesperson for the Pennsylvania Insurance Department, wrote in an email.
Post-Gazette: Democrats focus Pennsylvania campaign on existential threat to health law
By Daniel Moore
September 27, 2020
WASHINGTON — For almost four years, Sen. Bob Casey, D-Pa., had told anyone who will listen — sometimes smaller audiences than he would prefer — that he believes the Affordable Care Act faces existential threats. President Donald Trump and Republicans in Congress, he warned, have attempted to repeal the decade-old health law and chipped away at its coverage and consumer protections.
After the death of U.S. Supreme Court Justice Ruth Bader Ginsburg on Sept. 18, Mr. Casey suddenly found national attention on his biggest issue as Democrats scramble to illustrate to voters, in the final five-week stretch of the 2020 campaign, the dangers of a third Trump nominee confirmed, which would mean a 6-3 conservative majority on the high court.
In Pennsylvania, Mr. Casey, a top supporter of former Vice President Joe Biden’s presidential campaign, will deliver a message of imminent doom: One week after Election Day, the Supreme Court will hear a lawsuit, backed by the Trump administration, that seeks to vacate the ACA entirely.
The Supreme Court nominee “will be the deciding vote on health care,” Mr. Casey said in an interview last week, noting 1 million Pennsylvanians have gained health coverage and 5.5 million have pre-existing conditions protected by the law. “These are big stakes.”
Mr. Trump and Senate Republicans, meanwhile, have moved forward to replace Justice Ginsburg, who was one of the five justices to uphold the ACA in a 2012 Supreme Court decision. On Saturday, Mr. Trump named Judge Amy Coney Barrett as his nominee to the court.
Yet Mr. Trump also has sought to show he cares about at least one provision in the ACA: On Thursday, he announced a series of executive actions on health care, including one that promised to safeguard insurance protections should the Supreme Court undercut the law.
But that action was largely symbolic. The administration would have to work with Congress to come up with replacement protections if the law is struck down.
Below the radar
The case before the Supreme Court originated as a legal challenge that flew below the radar in Washington and elsewhere.
The lawsuit dredged up years-old arguments over the ACA’s individual mandate, the financial penalty the law required Americans to pay when they refused to buy health insurance.
The suit was filed by 20 Republican-led states in February 2018, seven months after Republicans’ repeal effort failed in Congress and almost six years after the Supreme Court, in a 5-4 decision, ruled the individual mandate was constitutional because Congress has the authority to tax and spend.
Yet because Republicans, as part of their 2017 tax cut legislation, zeroed in on the individual mandate’s penalty, the petitioning states — led by Texas — argued it became unconstitutional because the government no longer collected revenue as a tax. The states once again sought that the law be struck down.
In December 2018, a federal judge in Texas issued a surprise ruling that wiped the entire law from the books. One year later, the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, ruled the individual mandate unconstitutional but sent the case back to the trial court for more analysis on whether the entire law should be scrapped.
In March, the Supreme Court agreed to hear the case. Oral arguments are set to begin Nov. 10, and a ruling is expected in May or June 2021.
In defense of the law, 21 states, all but one led by Democrats, have jumped into the case. Six additional states — including Pennsylvania and two Republican-led states — filed an amicus brief in May in defense of the law, arguing, in part, the debate over the individual mandate should be considered to be separate from the rest of the law.
Even some conservative legal analysts have argued the individual mandate should be treated as a separate matter.
Sudden campaign issue
Health care was already a top issue in Pennsylvania and other swing states before the COVID-19 pandemic hit in March. Pittsburgh’s economy has grown with health innovations, a thriving insurance industry and social services to care for an aging population.
The Biden campaign has tried to highlight flaws in Mr. Trump’s response and downplaying of the dangers of the pandemic, whose death toll passed 200,000 Americans last week. The Biden campaign mentioned COVID-19 in 53.6% of its ads, compared with 27.9% for the Trump campaign, according to a Sept. 17 analysis by the Wesleyan Media Project.
Yet it was not until Justice Ginsburg’s death that Democrats drew a clear line between the ACA lawsuit and their broader health care platform.
As recently as last winter, Mr. Casey was imploring his party to talk to voters about the key tenets of the ACA and propose moderate measures to expand coverage and lower costs. At that time, much of the oxygen in the crowded Democratic primary was consumed by the debate over the prospects for universal health care coverage under “Medicare For All” proposals.
“Our party is failing on educating and alerting the public about this,” Mr. Casey vented during a December 2019 interview, referring to efforts to undermine the ACA.
When Mr. Biden cleared his path to the nomination, Mr. Casey — the top Democrat on the Senate Aging Committee and a member of the Senate Health, Education, Labor and Pensions Committee — became a key surrogate in Pennsylvania.
Mr. Casey was deeply involved in drafting the law and has been defending it in the decade since it was signed by then-President Barack Obama in March 2010. The ACA has expanded insurance coverage to more than 20 million Americans and provided popular protections, including requiring coverage of pre-existing medical conditions and allowing young adults to stay on their parents’ insurance until age 26.
A surge in fundraising and campaign ads have seized on the issue. An ACA advocacy group, Protect Our Care, launched ads against vulnerable Republican senators in Colorado, Iowa and North Carolina. “Your health care is on the line,” the ads say.
Mr. Casey’s campaign arm put out an emailed call for donations to be shared with Democratic Senate candidates in Alaska, Iowa, Maine, Montana, North Carolina and South Carolina who are trying to wrest back control of the Supreme Court.
“Bob and his fellow Democrats will fight like hell to stop President Trump’s anti-democratic takeover of the courts,” the email said.
Practical implications
The practical implications of the lawsuit’s outcome remain pure speculation. Depending on the justices’ decision, the law could remain totally intact, be partially undone — or be vacated altogether.
Last week, Mr. Biden and Democrats have raised the possibility that myriad lifetime health complications of contracting COVID-19 could qualify as pre-existing conditions that would be denied by health insurers if the law is kneecapped or vacated.
“It effectively renders Americans uninsurable,” said Andy Slavitt, senior adviser to the Bipartisan Policy Center, a Washington research organization founded by two Republicans and two Democrats.
“For the rest of their lives, virtually any illness — whether it’s asthma, whether it’s a heart arrhythmia, whether it’s cancer — insurance companies would simply not be required to cover,” said Mr. Slavitt, who was an acting administrator of the Centers for Medicare and Medicaid Services under Mr. Obama.
Marian Jarlenski, an associate professor of health policy and management at the University of Pittsburgh Graduate School of Public Health, said an adverse ruling could lead to “a pretty devastating loss of health care coverage, if there’s not some other national or state-level backup plan.”
She pointed to three pillars of the law: a tax hike on wealthy households to shore up Medicaid; an expansion of Medicaid coverage to low-income households; and the creation of state-run health insurance exchanges for uninsured people and small businesses.
In Pennsylvania, 331,825 people gained health insurance through commercial plans purchased on the state’s exchange and 720,000 enrolled in Medicaid.
“It’s extremely disappointing that our elected officials aren’t working on shoring up universal access to medical care and that instead they’re fighting about the technicality of the ACA,” Ms. Jarlenski said.
If the ACA were to be struck down and altered, “the costs that will be paid are human ones,” Lindsay Bracale, a spokesperson for the Pennsylvania Insurance Department, wrote in an email.
By the time the Supreme Court rules next year, Pennsylvanians who enrolled in coverage — the enrollment period runs from Nov. 1 through Jan. 15 — would keep it through the year, Ms. Bracale wrote. But the future of health care without the ACA is uncertain for millions of people.
“The ACA isn’t perfect, but it significantly changed the landscape of health care,” she wrote.
A backup plan?
Republicans say they have a plan. The Republican Study Committee, led in part by Rep. John Joyce, R-Blair, unveiled a proposal in October 2019 that closely resembled the GOP’s ACA replacement plan from 2017.
The plan eliminates the individual mandate, phases out the enhanced federal matching rate for the Medicaid expansion and replaces those dollars with block grants. It creates subsidized high-risk pools for people with high health care costs, a common practice by states before the ACA.
The plan promises to protect those with pre-existing conditions, accusing ACA supporters of trying to “weaponize” the issue.
Mr. Joyce, in a statement, said he supports the total repeal of the ACA, which he called a “poorly written law [that] made quality health care less accessible and more expensive.”
A spokesperson for Sen. Pat Toomey, R-Pa., who voted for the ACA repeal measures in 2017, said the senator supports the removal of the individual mandate and believes the ACA “ought to be replaced with a more affordable, consumer-driven health care system.”
“However,” the spokesperson added, “it is a complicated legal question as to whether all of Obamacare must be struck down as a result.”
Read the piece here.
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