It will be a market where employers will not be required to offer their workers coverage. It will be a market where people will not be required to buy insurance. And it will be a market where insurers will be free to sell plans that don’t cover primary and preventive care or a significant share of those expensive hospital bills.
If you throw in the lawsuit being pursued by 20 state attorneys general that got a friendly hearing in a Texas federal court, it will also be a market largely free of regulatory oversight and without limits on how much of insurance premiums can be siphoned off for overhead and profits.
It will, in short, be a marketplace that looks a lot like the one that existed before passage of the Affordable Care Act, when 16% of the nation’s population did not have health insurance and premiums routinely rose faster than the overall economy.
The latest repeal bill doesn’t do the federal budget any favors, either. The Congressional Budget Office tallied up the 10-year cost at more than $50 billion. Don’t hold your breath waiting for that once-respected agency to influence the outcome.
In the past year, Congress passed both a huge tax cut and a major spending hike. That’s fueled a nearly trillion-dollar deficit in 2018, which is ridiculous timing for a stimulus given the economy’s low unemployment rate. It amounts to firing all your ammunition before the real battle—the next recession—starts.
It would be a big mistake to dismiss the GOP’s antics as election-year posturing. Last year’s near-miss on repealing the ACA—only a thumbs-down from Sen. John McCain saved the law’s coverage expansion—reveals a grim determination by the majority party to deny meaningful health insurance to tens of millions of their fellow Americans.
This isn’t just about the exchange- based market created by the ACA. The Texas lawsuit declares the entire insurance expansion unconstitutional, thus eliminating consumer protections like guaranteed coverage for people with pre-existing conditions. Public opinion polls show overwhelming support for those protections, including among Republicans.
If successful, the lawsuit will eventually go to a Supreme Court where two new justices appointed by President Donald Trump could wind up casting the deciding votes. Legal scholars sniff at its legal theory that zeroing out the tax penalty, the section of the law used to uphold the constitutionality of the individual mandate, voided the entire insurance expansion.
Judge Brett Kavanaugh reportedly reassured Democrats in meetings prior to his confirmation hearings that he believed in severability, where one section of a law can be eliminated without undermining the rest of the law unless Congress specifically signals that intent. But his refusal to comment on the issue during his confirmation hearings is troubling.
These renewed political assaults come at a time when the ACA exchanges have finally stabilized. Rates for 2019 rose only 4% on average. Without the mandate repeal or the Trump administration’s decision to authorize skimpy short-term and association plans, rates would have fallen about 5% this year, experts estimate. Restoring the cost-sharing subsidies (the cuts were last year’s effort to undermine the exchanges) would lower rates another 15%.
The upshot is that the ACA has proven it can work. But its fate rests on the outcome of this year’s midterm elections.
The law’s defenders face stiff headwinds. Given the nation’s gerrymandered and tribally sorted election districts, pollsters estimate Democrats will need to win the popular vote by at least 5 to 7 percentage points to win back the House.