Supreme Court weighs Obamacare

Supreme Court of the United States. (Photo by Mark Trahant, Indian Country Today)

Indian Country Today

At stake: the Indian Health Care Improvement Act a well as consequences for just about every American, the health care industry, and state budgets *Updated

Indian Country Today

When the Supreme Court weighs the fate of "Obamacare" Tuesday, arguments will revolve around arcane points of law like severability — whether the justices can surgically snip out part of the law and leave the rest.

But what's at stake has real-world consequences for just about every American, as well as the health care industry, a major source of jobs and tax revenues. Whether the Affordable Care Act stays, goes, or is significantly changed, will affect the way life is lived in the U.S.

That could include striking down the Indian Health Care Improvement Act, a chapter of the Affordable Care Act. 

“Tribal leaders and Native communities have made it abundantly clear that the ACA—while not perfect — literally saves lives. The ACA permanently reauthorized the Indian Health Care Improvement Act and expanded access to health care for Native Americans through marketplace exchanges, Medicaid expansion, and increased revenue for the Indian Health Service," said New Mexico Sen. Tom Udall, a Democrat, in an October 5th news release. Udall warned that Amy Coney Barrett, the new associate justice on the court, will lead to a dismantling of the law.

Several tribes have filed a statement supporting the Indian health care system provisions in the current law. "Striking down" the Indian Health Care Improvement Act and other provisions "would disregard the trust responsibilities espoused by Congress and subvert federal Indian health care policy, without any indication that Congress had anticipated—let alone intended— such a result," according to the statement of Amici Curiae filed by dozens of tribes, tribal organizations, and coalition members.

(Related: Obamacare likely to survive, arguments indicate)

The statement said the whole idea of the Affordable Care Act was meant to "increase the capacity of the Indian health system to respond to and address these problems—whether in the context of ordinary primary and preventive care or in the case of public health emergencies."  The tribes argued that any decision should leave intact the Indian health care provisions.

Watch: Supreme Court hearing on C-SPAN

This will be the third time the Supreme Court has reviewed the Affordable Care Act. 

The case, California v. Texas, is the result of a change to the health law made by Congress in 2017. As part of a major tax bill, Congress reduced to zero the penalty for not having health insurance. But it was that penalty — a tax — that the high court ruled made the law constitutional in a 2012 decision, argues a group of Republican state attorneys general. Without the tax, they say in their suit, the rest of the law must fall, too.

After originally contending that the entire law should not be struck down when the suit was filed in 2018, the Trump administration changed course in 2019 and joined the GOP officials who brought the case.

There is a lot at stake. 

The Supreme Court could declare the entire law unconstitutional — which is what a federal district judge in Texas ruled in December 2018. But legal experts say that’s not the most likely outcome of this case.

First, the court may avoid deciding the case on its merits entirely, by ruling that the plaintiffs do not have “standing” to sue. The central issue in the case is whether the requirement in the law to have insurance — which remains even though Congress eliminated the penalty or tax — is constitutional. But states are not subject to the so-called individual mandate, so some analysts suggest the Republican officials have no standing. In addition, questions have been raised about the individual plaintiffs in the case, two consultants from Texas who argue that they felt compelled to buy insurance even without a possible penalty.

The court could also rule that by eliminating the penalty but not the rest of the mandate (which Congress could not do in that 2017 tax bill for procedural reasons), lawmakers “didn’t mean to coerce anyone to do anything, and so there’s no constitutional problem,” University of Michigan law professor Nicholas Bagley said in a recent webinar for the NIHCM Foundation, the Commonwealth Fund and the University of Southern California’s Center for Health Journalism.

Or, said Bagley, the court could rule that, without the tax, the requirement to have health insurance is unconstitutional, but the rest of the law is not. In that case, the justices might strike the mandate only, which would have basically no impact.

The Trump administration, and conservative states, argue the 10-year-old statute was rendered unconstitutional in its entirety when Congress dialed down to zero a penalty on those remaining uninsured.

Indian health programs at risk

Should the argument prevail that the entire law is unconstitutional that would include the Indian Health Care Improvement Act.

Analysis by USC-Brookings Schaeffer Initiative for Health Policy said: "The future of many Indian Health Service (IHS) programs, especially related to mental health and substance use, would be unclear."

The paper by health policy fellow Christen Linke Young said much of the existing IHS infrastructure for treating mental health and substance use needs is supported by the Affordable Care Act framework and "it is unclear how service delivery might have to change without ACA authorities."

Another point of chaos could be the role of Medicaid, which is a key funding stream for the Indian health system. Medicaid covers 75 million people and its importance has grown during the COVID-19 pandemic. 

"Unwinding Medicaid expansion would be chaotic, would require record federal ability to address state requests, and could leave states on the hook for billions of dollars in spending," Young wrote. "It is difficult to overstate how unprecedented it would be for the Supreme Court to strike down a program that serves 13 million people and spends $90 billion per year. Many of those 13 million beneficiaries are in active treatment for health care conditions, and all of them have coverage that is authorized in state policy documents, approved by the federal government, and largely financed with federal resources."

COVID-19 A NEW PRE-EXISTING CONDITION

Before the ACA, insurers could turn a person down for an individual policy, or charge them more, based on their medical history. The nonpartisan Kaiser Family Foundation estimates that about 54 million working-age adults have health issues that would have made them "uninsurable" before former President Barack Obama's signature law. 

Tens of millions more have issues that could have led to higher premiums. Female gender was one, as insurers routinely charged women more. 

COVID-19 would become America's newest pre-existing condition, for more than 10 million people who have tested positive so far.

Under the ACA, a coronavirus case cannot be used to deny someone coverage or charge them more. If Obamacare is gone, that becomes a real question.

President Trump promised to always protect people with preexisting conditions, but never said how he'd do it.

PREVENTION 

Most American women now pay nothing out of their own pockets for birth control. That's covered as a preventive service, free of charge to the patient, under the ACA.

Many other services, from colonoscopies to flu shots, are also free. 

If people again face copays for routine preventive care, that may discourage some to go for tests shown to detect diseases like cancer at early stages when they are easier to treat.

RETURN OF A MEDICARE GAP

"Obamacare" took the first major steps to close Medicare's unpopular "doughnut hole," a coverage gap that used to leave seniors on the hook for hundreds of dollars in prescriptions drug costs. Congress later accelerated the timetable.

Repealing the ACA would mean the return of the coverage gap, sure to infuriate older voters, many of whom say their medications still cost too much.

That's just one of many potential consequences to Medicare. The ACA slowed payments to hospitals and insurers to extend the life of the Medicare trust fund.

LONGER RUNWAY SHORTENED 

One of the earliest benefits to take effect after the passage of "Obamacare" was a requirement that insurers allow young adults to stay on a parent's plan until they turned 26. 

That provided a longer economic runway for millions of young adults, who back then were struggling with the lingering effects of the Great Recession. Nowadays it's the consequences of the coronavirus economy. 

Before the ACA's coverage extension, insurers routinely cut off young adults upon graduation. 

TAX CUT FOR THE WEALTHY

"Obamacare" raised taxes on upper income individuals to help finance its coverage expansion.

If the entire law is repealed, that would deliver a tax cut to well-to-do people, many of whom have escaped the economic shock of the COVID-19 pandemic because stock market investors have continued to do well.

POLITICAL RUBIK'S CUBE

Passing the 900-page-plus ACA was a political challenge that took more than a year at a time when Democrats controlled the White House and both chambers in Congress.

Putting together a replacement under a divided government would be the ultimate political puzzle. Neither Democrats nor Republicans agree even within their own ranks what that should look like.

President-elect Joe Biden would build on the ACA by improving it and adding a new public health insurance option. But party liberals want a government-run system for all Americans, including the 160 million covered through employer plans.

Many Republicans, meanwhile, want to scale back the government's support for health care. They would make deep cuts to Medicaid financing, and leave the ACA's insurance markets as a state option. Protections for people with pre-existing conditions could be eroded under new rules.

Trump once famously said, "nobody knew health care could be so complicated." That was in 2017, when he and a Republican-controlled Congress harbored hopes they could "repeal and replace" the ACA.

It didn't happen then because Republicans could never agree on what a replacement would look like. 

Fast forward to 2020. Health care has only gotten more complicated.

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The Associated Press, Kaiser Health News and Indian Country Today contributed to this story.

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