By Andrew Sprung, David Anderson and Louise Norris
On November 10, the Trump administration will ask the Supreme Court in oral argument to declare the Affordable Care Act unconstitutional – and nullify the law in the midst of a pandemic, uninsuring an estimated 23 million people. As Republicans rushed to confirm the nomination of Amy Coney Barrett to the Supreme Court, Senate Majority Leader Mitch McConnell asserted that “no one believes” the Court will strike down the law – implying, as many hard-pressed Republican incumbents have also implied, that Republicans have no wish to do so.
But ACA repeal has been Republican policy since President Obama signed the bill into law in March 2010. In 2017, a Republican House and Congress came within a whisker of repealing the ACA’s core programs, and 90% of Republicans in Congress voted for repeal. Where would be now if they had succeeded? How many more Americans would be uninsured, and what options would be available to the millions who have lost job-based coverage since the pandemic reached our shores?
Republican “health reform”: Cut ACA subsidies and Medicaid
In May 2017, the Republican House passed the American Health Care Act (AHCA). The nonpartisan Congressional Budget Office (CBO) forecast that if the bill passed,19 million fewer Americans would be insured by 2020 and 23 million by 2024. CBO projected similar coverage losses for the Better Care Reconciliation Act (BCRA), the companion Senate bill. After nine Republican senators defected to help defeat passage of the BCRA, a “skinny” repeal bill that would have opened the door to passage of a revised House bill failed by a single vote when John McCain unexpectedly turned his thumb down.
Both the AHCA and the BCRA would have sharply reduced the ACA’s premium subsidies in the individual market for health insurance and would have rendered the available coverage virtually unusable for millions of low-income enrollees by eliminating the ACA’s Cost Sharing Reduction subsidies. But both bills did their deepest damage by eliminating federal funding for the ACA Medicaid expansion, which extends Medicaid eligibility to all adult citizens and some legally present noncitizens with incomes up to 138 percent of the Federal Poverty Level (this year, that’s $1,467 per month for an individual). CBO forecast that under both bills, expansion enrollment would be wiped out, reducing Medicaid enrollment to 8 to 9 million by this year, and by 14 to 15 million as of 2024.
Both bills would also have fundamentally altered Medicaid by converting federal funding to a capped contribution that would grow more slowly than medical inflation. Under such per capita caps or block grants, states would now be bearing all pandemic and recession cost risk even as state revenues have collapsed.
The nonpartisan Center for a Responsible Federal Budget estimated that the BCRA would reduce Medicaid spending by more than $2 trillion over 20 years, progressively weakening coverage for tens of millions who were not disqualified by repeal of the ACA expansion.
After their failed repeal efforts, Republicans chipped away at the margins of the ACA’s core programs: the subsidized private plan marketplace and the Medicaid expansion. According to the federal National Health Interview Survey, the national uninsured rate has increased from an all-time low of 9.0% in 2017 to 10.3% in 2019. Still, in February 2020, just before the pandemic caused economic havoc, 12 million adult Medicaid enrollees were rendered eligible by ACA expansion criteria, and 9.2 million enrollees in the ACA private plan marketplace received federal subsidies that paid for an average of 76% of their premiums.
45 Million uninsured — and climbing
Had either Republican “repeal and replace” bill been enacted in 2017, the uninsured population by February 2020 would almost surely have risen to about 45 million, as projected by CBO – about 50 percent higher than its actual level. The pandemic would doubtless have accelerated the climb to 49-50 million uninsured that CBO projected by 2024.
Instead, when the pandemic struck and triggered tens of millions of job losses, the ACA’s core programs stood as a gap-ridden but still substantial defense against massive increases in the uninsured population. The yeoman’s work has been done by the Medicaid expansion. Medicaid eligibility is determined by current monthly income, so that someone who loses a middle class job during the pandemic may immediately qualify.
By June, according to the Center for Medicare and Medicaid Services, Medicaid enrollment had grown to 75 million — an increase of 4 million since February. Enrollment growth has continued throughout this pandemic. It is likely now stands at 78 million, about 10 percent above the February total. Among those rendered eligible by the ACA Medicaid expansion, enrollment growth is in the neighborhood of 20%. At least 14 million current Medicaid enrollees would be ineligible in a “Repeal and Replace” world.
The ACA marketplace offers more limited protection — due to both the administrative burden of verifying enrollment eligibility and the determination of subsidies by annual instead of monthly income. Still, by one estimate, marketplace enrollment is likely about 1 million higher than it would have been absent the pandemic. Regulators have prepared the marketplaces for significant new enrollment during the fall open enrollment period.
The uninsured population has doubtless increased during the months of unprecedented job loss triggered by the pandemic. But it would have risen faster and farther — and from a much higher base — had the Medicaid expansion and the current ACA marketplace been eradicated.
Even with the likely accession to the Supreme Court of Trump nominee Amy Coney Barrett, who has opined that the Supreme Court wrongly declared the law constitutional in 2012, McConnell may right in predicting that the Court will not void the entire law. But that is what the Trump administration and the 18 Republican attorneys general and governors prosecuting the suit are asking for. ACA nullification has to be regarded as the policy of a party that at its national convention declined to produce any platform other than a statement of fealty to Trump.
David Anderson, MSPPM, is a research associate at Duke University’s Margolis Center for Health Policy.