"ski jump into lawlessness"

ACA rally, Harrisburg 2017

​It’s an overused metaphor, but it’s so apt I can’t help but use it. The Republican zombie of an effort to kill the Affordable Care Act is back. This time the attack is coming from the direction of our own Justice Department led by Attorney General Jeff Sessions. What’s different is, unlike the typical mute, mindless creature depicted in horror films, this zombie is devious and is taking a different tack to achieve its end goal of dismantling President Obama’s signature legislation.

On Thursday, the Justice Department decided not to defend the constitutionality of two key provisions of the Affordable Care Act, namely “guaranteed issue” which requires insurance companies to cover those with preexisting conditions and “community rating” which has to do with charging higher premiums based on medical history. Neither will DOJ defend the Affordable Care Act against state law suits.

Last time I checked, the job of the Justice Department was to uphold the laws of this land. But in a letter to Congress, Sessions wrote, “The Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense… this is a rare case where the proper course is to forgo defense.” And just like that, rule of law was thrown out the window.

And here’s the cost: millions of Americans who suffer from pre-existing conditions are at risk of being denied health care coverage. “How?” you may ask. In order for the ACA to work as designed-to provide coverage for pre-existing conditions-a certain number of people have to participate in the system, because it helps to expand the risk pools. This is where the Individual Mandate came in. Most people were required to obtain health insurance under the ACA. If they failed to do so they were penalized, with this penalty being levied by the Internal Revenue Service. When this specific provision was legally challenged, it was upheld by the Supreme Court on the grounds that even though it exceeded Congress’ powers under the Commerce Clause, Congress does have the power to levy taxes. Remember the right’s mantra that Obamacare was just another big government tax? This is where the idea originated. In the recent GOP tax bill, the mandate was repealed by setting the penalty at zero. Therefore, according to a lawsuit brought by twenty Republican state attorneys general, the ACA is unconstitutional because now no tax is being collected, and Congress has overstepped its bounds.  So now AG Sessions believes he has no obligation to defend the law.

​Let’s talk about pre-existing conditions for a bit. Although Republicans in Congress and Jeff Sessions act as though they’re far removed, I guarantee everyone reading this knows someone with arthritis or diabetes or heart disease or suffers from one of those ailments themselves. In fact, one can argue that merely being born a woman is a pre-existing condition in itself. Now think of someone diagnosed with cancer. With that diagnosis, cancer survivors are immediately labeled as have a pre-existing condition. Under the ACA, those people were guaranteed that coverage couldn’t be denied. That provision of the ACA literally saves lives. Kathy Kolb of Breast Cancer Support Services of Berks County points out, “People without health insurance are more likely to be diagnosed with cancer at a late stage, when the disease is harder to treat, more costly and more difficult to survive.” Kathy should know. She’s a two-time breast cancer survivor herself. She shared some of her experience with the Affordable Care Act: 

“In 2000 I had a lumpectomy. After a recurrence in 2005, I decided on double mastectomies so that cancer would be behind me. I changed jobs in 2006 – and became Executive Director of Breast Cancer Support Services (BCSS) of Berks County in Reading. This is a non-profit organization to help people affected by breast cancer. Unfortunately, my employer didn’t offer health insurance. Everything worked well until my husband lost his job in 2014. We then needed to access health insurance through the Affordable Care Act.

Thank goodness! In my position at BCSS, I have seen firsthand the impact of the ACA.  Before 2010, women come into my office at the end of their rope looking for access to the treatments they needed to live. Pre-existing conditions just were not covered by insurance. High –risk pools were failures: High premiums, limited availability and high deductibles made them a disaster.

The ACA has changed the face of healthcare for those of us with pre-existing conditions. While it’s not perfect, I do not want to lose the coverage I have. We can’t go back to the days of worrying a job change will jeopardize your health.”
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What does all this mean for you?

​In an article for Kaiser Health News, Julie Rovner and Julie Appleby lay out five key things to watch for as this argument goes forward:

1. Who will be affected? Since there is no exact definition of what constitutes a pre-existing condition, there are no precise numbers on how many people could be affected. Prior to the ACA people were denied coverage because of cancer, arthritis, heart failure, diabetes, and other common illnesses. The Kaiser Foundation estimates that about 1 in 4 adults have a pre-existing condition, so we’re talking millions of people at risk of losing coverage.
2. When can we expect these changes? It could take years, because it’s possible this new attempt at dismantling the ACA could go all the way to the Supreme Court. A more immediate concern is what will happen to premiums next year. The jury is still out. Some experts argue premiums will go up due to uncertainty in the market. Others say that uncertainty has already been factored in because of threats the administration has been making all along. But with younger and healthier people no longer bound by the mandate, we will undoubtedly see a rise in premiums.
3. What is the legal argument behind the recent challenge to the ACA? The constitutionality of the ACA has been held up twice in court. In 2012 Chief Justice John Roberts wrote that the requirement to pay a fine for not having coverage was a tax, and therefore was constitutional. The recent lawsuit led by Texas AG Ken Paxton and Wisconsin AG Brad Schimel argues that without the penalty, there’s no tax, so the rest of the law can’t be upheld. The counter-argument says Congress always has the right to amend statutes, and that’s simply what they did when repealing the mandate, thus the ACA stands.
4. If the Trump administration isn’t going to defend the ACA, who will? 17 state attorneys general led by California’s Xavier Becerra are part of a coalition defending the health care law. Pennsylvania’s AG Josh Shapiro, who has defended the ACA in the past, has not yet signed on. I spoke to someone in his office yesterday, and they told me he’s been very active on this issue, which is true. Shapiro has been an outspoken defendant of the ACA and joined a suit back in October against the administration’s executive order to stop paying cost sharing subsidies to insurers. All Shapiro’s staffer could tell me was that she had no information at this point as to whether he would or would not join the current legal action led by Becerra. (Perhaps some friendly phone calls are in order.)
5. Should we even be concerned at this point? Yes! It has to do with one of the key components of our democracy-the rule of law. Prior to taking office, the president swears an oath "to the best of his ability, preserve, protect and defend the Constitution of the United States." Failing to uphold the ACA is a violation of that oath.

 
It’s bad enough the administration’s change in strategy puts the lives of millions of Americans in jeopardy.  But its new approach is scarier than any zombie movie could be. It takes a huge swipe at the rule of law and therefore democracy. Like the Washington Post’s Ruth Marcus said, “This is not a slippery slope. It is a ski jump into lawlessness.”

​posted by Amy Levengood