Back in March 2011, when the biggest threats facing Obamacare were the Supreme Court and the 2012 elections, I argued that the demise of the Affordable Care Act would put people’s lives in immediate danger.
At the time, the law had relatively few beneficiaries—people under 26 covered by their parents’ health plans, a small population of people with pre-existing medical conditions. But some of them had already used their new coverage to finance the kinds of life-saving treatments that would leave them in need of chronic care for the rest of their lives. Take away the health law, and most of these organ transplant recipients and other patients would have become unable to afford their medications, and some of them would die.
Since then, millions of people have gained coverage under the law, and that group of chronic care patients has grown much larger. But despite the fact that the Court upheld the law, and President Obama won reelection, the ACA isn’t out of danger.
On Friday, the Supreme Court agreed to hear a case that will determine whether the federal government can continue to subsidize private ACA coverage in states that didn’t set up their own insurance exchanges.
That case is King v. Burwell, but the issue at stake has come to be defined by a comparable case called Halbig v. Burwell.
The Fourth Circuit Court of Appeals ruled against the challengers in King, but the Supreme Court agreed to grant cert to those challengers anyhow, despite the absence of a Circuit Court split. If the five conservative Supreme Court justices are so inclined, they can void ACA subsidies for millions of beneficiaries, and cripple the insurance markets in about three dozen states.
Some of those beneficiaries will be the kinds of transplant recipients and other patients I wrote about three and a half years ago. Except today there are many more of them. Several of these patients explained the risk to their lives in an amicus brief, urging a different circuit court to reject the challenge to the subsidies, and thus to the viability of the insurance markets their lives depend on.
“Without insurance, Jennifer [Causor’s] treatments would be completely unaffordable. Her transplant cost nearly $280,000. She takes three anti-rejection drugs, one of which has a sticker price of $2,400 per month…. Should she become uninsured, Jennifer would face bankruptcy and even death.”
You can read the whole brief below. Conservatives are brimming with excitement over the Court’s decision to hear the challenge. Should the five conservatives rule that the text of the law doesn’t provide for federal subsidies in states that didn’t set up their own exchanges, they’ll place the onus on Congress or state governments to address the consequences for constituents who lose their benefits. The contested text could be fixed with a comically simple technical corrections bill, which Democrats would happily support. If Republicans were to sit on their hands, or use the ensuing chaos as leverage to extract unrelated concessions, it will cost people their lives. That is a cardinal reality facing justices, and the people soliciting their conservative activism.
There’s an ironic post-script to this article. The Supreme Court is likely to resolve this case with a 5-4 decision, one way or another. Either a single conservative will side with the Court’s four liberals as in 2012, and leave the law unscathed, or the five conservatives will align to void the subsidies.
Under the circumstances, supporters of the law might be nervous about the potential loss of a liberal justice. Ruth Bader Ginsburg’s health and advanced age make many liberals very uneasy, especially now that Obama’s ability to fill Supreme Court vacancies has come into doubt. But for the purposes of King, this issue is immaterial.
If Ginsburg’s seat were to become vacant, then the fate of the law would remain in the hands of a conservative swing justice. A 4-4 split effectively upholds the lower court’s ruling—and since the Fourth Circuit upheld the subsidies, the subsidies would stand. If the Fourth Circuit had ruled the other way, her health would be much more material.
When I mentioned this admittedly morbid but nevertheless important curiosity on Twitter, a large number of dimwitted (or in some cases persistently dishonest) conservatives flooded my mentions column in outrage. Most of them missed the meaning altogether, and accused me of wishing death upon a conservative Supreme Court justice. But even the ones who didn’t managed to contain their enthusiasm over the possibility of millions of people losing insurance for a moment, to reprimand me for being so cavalier about people’s lives.
By: Brian Beutler, The New Republic, November 7, 2014
“Obamacare Is Here To Stay”: Kentucky Is Emblematic Of The States That Have Received Substantial Assists From Obamacare
You’ve heard of Obamacare, right?
It’s that disastrous, costly and intrusive policy that President Obama and his fellow Democrats rammed down the throats of Congress back in 2010 — a failed plan that conservative Republicans have pledged to “repeal and replace.” According to its critics, it is un-American; it destroys the health care system; it burdens businesses; it hollows out Medicare. Right?
Ah, wrong. Despite what you may have heard and despite the caprice of electoral campaigns, the changes wrought by the Affordable Care Act are here to stay. That’s because it accomplishes much of what it set out to do — and its beneficiaries mostly like it.
Don’t expect Republicans to try to turn back the clock. Oh, some of them will continue to bash Obamacare and to blame it for any negative effects on the country’s dysfunctional health care “system” — including rising costs. And some will even go so far as to continue to insist that it ought to be repealed.
Take Senate Minority Leader Mitch McConnell, who expects to lead the upper chamber if Republicans claim a majority. In a debate last month with his Democratic rival, Alison Grimes, McConnell suggested that he would repeal the Affordable Care Act but leave in place Kentucky’s popular state exchange program.
“… The best interest of the country would be achieved by pulling out Obamacare, root and branch,” he said. “Now, with regard to Kynect, it’s a state exchange. They can continue it if they’d like to.”
McConnell’s pronouncement was a tour de force of dissembling, a virtuoso performance of fabrications and disinformation. The Washington Post’s fact checker awarded him three Pinocchios.
That’s because the state’s health care exchange, Kynect, is a part of Obamacare, made possible by the 2010 law. If Obamacare is ripped out “root and branch,” the state exchanges could not continue to exist. (The GOP has continually pledged to find a mechanism to replace Obamacare, but its warring factions have failed to agree on any plan that would leave state exchanges in place.)
Here’s the rub: Kynect is very popular with Kentucky’s residents, many of whom are enjoying health insurance for the first time in their lives. They have been primed by Republican politicians to hate the president and any policy he endorses — including his signature health care plan — but they don’t want to give up Obamacare’s benefits.
Kentucky is emblematic of the states that have received substantial assists from Obamacare. It is largely rural and is among the poorest states. It has also long ranked near the bottom in several health indicators, including obesity and smoking rates and cancer deaths. Obamacare has been a boon for its residents, cutting the rate of uninsured in half.
According to The New York Times, people who live in rural areas are among the biggest winners from the Affordable Care Act. Other groups who have reaped substantial benefits are blacks, Latinos, women and younger Americans between 18 and 34.
Here’s another reason that Obamacare is here to stay: Its expansion of Medicaid is a boon to the states that have taken advantage of it. After the Supreme Court ruled that Medicaid expansion was optional, most Republican governors vowed to resist it — even though the federal government will pay 100 percent of the cost for the first three years and 90 percent thereafter.
But some of those GOP governors are now having second thoughts as rural hospitals are forced to close down for lack of funds and poor people are sidelined by preventable illnesses. Several GOP governors have already expanded Medicaid — which provides health insurance for the poor — and others are considering doing so.
Last month, Ohio’s Republican governor, John Kasich, advised his GOP colleagues to stop fighting the Medicaid expansion. The opposition, he said, “was really either political or ideological. I don’t think that holds water against real flesh and blood, and real improvements in people’s lives.”
Some Republicans have trouble admitting that on the campaign trail, but they all know it’s true.
By: Cynthia Tucker, The National Memo, November 1, 2014
In a debate with opponent Mark Pryor last night, Republican Senate candidate Tom Cotton, who’s very much the poster boy for the GOP future if the party refuses to moderate or diversify, showed again he’s not as smart as he thinks he is. ThinkProgress’ Alice Ollstein has the story:
Tom Cotton, the Republican candidate for Arkansas’ U.S. Senate seat, has repeatedly denounced the Affordable Care Act as a failure and vowed to help repeal it if elected. But in his second and final debate Tuesday night against Democratic incumbent Mark Pryor, he went further, claiming the high-risk insurance pools that many states ran before Obamacare’s passage were better for people with pre-existing conditions than the current exchanges.
“Many people were happy with their coverage under the high-risk pool, before it was eliminated,” Cotton said. “They should have been allowed to keep that choice.”
Pryor shot back, saying his personal experience proved otherwise. “I am a cancer survivor,” he said. “I have been in the high-risk pool. I have lived there. It is no place for any Arkansan to be. If we go back to the high-risk pool, it’s like throwing sick people to the wolves.”
Many of the high risk pools Cotton praised were known for their sky-high costs, exclusion of many applicants, and strict limits on what care is covered. In Arkansas, out of pocket costs for patients in such pools could be as high as $20,000 and those with pre-existing conditions had an average 6 month waiting period for care.
Now to be fair, it’s not 100% clear whether Cotton was referring (as was Pryor) to the high-risk pools that existed in Arkansas and many other (though not all) states prior to the enactment of the Affordable Care Act, or to the new high-risk polls set up by Obamacare itself. But either way, the costs are much higher and the coverage much less extensive than under policies available via the exchanges. Maybe there’s somebody out there who did better under an unusually generous high-risk poll than under, say, an Obamacare Bronze Plan. But I’d say the burden’s on Cotton to explain what the hell he’s talking about. Certainly as a cancer survivor Pryor is in a superior position to know what it’s like to depend on high-risk pools, and Republicans everywhere have gotten away far too much with blithely talking about such pools as an “answer” without acknowledging the problem of crappy insurance at unaffordable rates.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, October 15, 2014
Like many eleventh-hour strategies, the right’s final offensive against the Affordable Care Act has a last-gasp quality to it. Where better-laid plans to defeat the ACA in Congress and via Constitutional challenge were fraught with ideological purpose, the challengers in Halbig v. Burwell are engaged in something much smaller. Their argument is merely that if you read a poorly drafted section of the statute out of context, it appears that the law doesn’t contemplate subsidies in states that availed themselves of the federal government’s backstop, Healthcare.gov. Millions of people would lose their health insurance in service of teaching Congress a lesson about the importance of legislative draftsmanship.
That’s not a very becoming political argument, though, so the Halbig supporters have stapled a grandiose claim to their core challenge. Because many of the people who would lose their insurance would also qualify for an exemption from the law’s insurance coverage mandate, they frame it as a principled campaign for liberty.
But many is not all. It’s probably not even most. As University of Michigan law professor Nicholas Bagley noted on Tuesday, a conservative victory in Halbig would eliminate subsidies for everyone, but the hardship exemption would only apply to a subset. Many, many people—those above about 180 percent of the federal poverty level—would still be required to purchase insurance. It would just become more expensive for them. The exemption—the escape hatch to freedom—would only be available to those whose coverage costs more than eight percent of income: the poor, and near-poor. These are the people whose liberty conservatives claim to be fighting for—the people who were only able to purchase insurance because the subsidies made it affordable. The people who, as Bagley writes, would “be free to decline coverage that, without tax credits, they can’t afford anyhow.”
This kind of post hoc appeal to liberty long predates the Affordable Care Act, but it has become particularly salient in the fight against Obamacare as enrollment has grown and weakened traditional tools of opposition. When the Supreme Court made the Affordable Care Act’s Medicaid expansion optional back in 2012, it vouchsafed an old but typically losing conservative argument that using federal spending as an incentive to force state action can be unconstitutionally coercive—a freedom-crushing blow against states’ rights. But the freedom the Court upheld two years ago looks, in effect, an awful lot like the freedom the challengers in Halbig claim to be fighting for. In both cases there’s something conspicuous about the people to whom these strange conceptions of liberty apply.
As of early April, per this Kaiser Family Foundation map, 19 states remained fully unwilling to consider Medicaid expansion. In the weeks since, Wyoming and Tennessee joined Utah and Indiana among GOP-controlled states working toward expanding Medicaid. So the chips are slowly falling. But they are falling along fairly predictable racial and income lines.
Tennessee was a genuine surprise, in that it isn’t lily white, and has fairly high rates of poverty. But the GOP-controlled states that have expanded Medicaid, or are considering Medicaid expansion, are pretty white relative to GOP-controlled states where expansion is out of the question. Deep Southern states, where poverty is most concentrated and black population rates approach 30 percent, aren’t calling up the Department of Health and Human Services in Washington to negotiate a conservative Medicaid expansion compromise. To the contrary, that’s probably where resistance to the expansion runs strongest.
The story won’t be much different if conservatives get their way and ACA subsidies disappear in Healthcare.gov states. If you haven’t caught on by now, the conspicuous thing about the Medicaid freedmen and those who would be freed from the individual mandate is that they’re disproportionately black and poor. ACA rejectionism isn’t enhancing their liberty at all.
But there’s something conspicuous about the Obamacare opponents posing as tribunes for liberty, too. They’re nearly all affluent white people, who take their own health insurance for granted and probably wouldn’t consider themselves liberated if a court or legislature took aim at it for any reason. And though their rhetoric suggests otherwise, they’re waging the final Obamacare battles against poor people and minorities, not on their behalf.
By: Brian Beutler, The New Republic, September 4, 2014
The D.C. Circuit just agreed to hear the Halbig lawsuit. The short explanation of what this means is that it has closed off the easiest path to crippling Obamacare. Here’s the long explanation:
1. The Halbig lawsuit is the right’s most recent desperate effort to retroactively nullify the Affordable Care Act. The lawsuit is a wildly tendentious argument that, based on an extremely narrow reading of one ambiguous passage in the health-care law, people in states with federal-run insurance exchanges should be ineligible. Since the tax credits make insurance affordable for most consumers, the lawsuit would wreck the exchanges for some 6.5 million people, which is its entire point.
2. The Halbig suit has previously been laughed out of court, but in July, two out of three judges from the D.C. Circuit agreed with it. This ruling reflected the luck of the draw — the two judges were Republican appointees on a court consisting mostly of Democratic appointees.
3. This created a split, with some courts dismissing Halbig and another one embracing it. The split created an obvious window for the Supreme Court to take up the case — contrasting opinions between Federal Courts is a common reason for the Supreme Court to take up a case.
4. The split would close if the entire D.C. Circuit took up the case. In important cases with split decisions, the entire court usually weighs in. Conservatives desperately wanted to avoid this, for the reason stated above. They undertook a furious public campaign (see, for instance, here and here) to persuade the Court not to hear Halbig as a whole. Their rationale is that the Halbig lawsuit is not legally important enough to merit a full hearing. That argument is as ridiculous and transparently partisan as it sounds. Nicholas Bagley explains why here.
5. What happens next is that the entire D.C. Circuit will hear the case. Since the logic of the lawsuit is so ludicrous only a wildly partisan Republican jurist would ever accept it, it stands zero chance of success.
6. After that, Federal Courts will be unanimous in opposition to the Halbig lawsuit. The Supreme Court could still take up the case then, but it could just as easily decide not to hear it.
By: Jonathan Chait, Daily Intelligencer, New York Magazine, September 4, 2014