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What to know as ACA heads to Supreme Court – again
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.
Here are some key questions and answers about the case.
What are the possibilities for how the court could rule?
There is a long list of ways this could play out.
The justices 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.
It gets more complicated if the court decides that, as the plaintiffs argue, the individual mandate language without the penalty is unconstitutional and so closely tied to other parts of the law that some of them must fall as well.
Even there the court has choices. One option would be, as the Trump administration originally argued, to strike down the mandate and just the pieces of the law most closely related to it – which happen to include the insurance protections for people with preexisting conditions, an extremely popular provision of the law. The two parts are connected because the original purpose of the mandate was to make sure enough healthy people sign up for insurance to offset the added costs to insurers of sicker people.
Another option, of course, would be for the court to follow the lead of the Texas judge and strike down the entire law.
While that’s not the most likely outcome, said Bagley, if it happens it could be “a hot mess” for the nation’s entire health care system. As just one example, he said, “every hospital is getting paid pursuant to changes made by the ACA. How do you even go about making payments if the thing that you are looking to guide what those payments ought to be is itself invalid?”
What impact will new Justice Amy Coney Barrett have?
Perhaps a lot. Before the death of Justice Ruth Bader Ginsburg, most court observers thought the case was highly unlikely to result in the entire law being struck down. That’s because Chief Justice John Roberts voted to uphold the law in 2012, and again when it was challenged in a less sweeping way in 2015.
But with Barrett replacing Ginsburg, even if Roberts joined the court’s remaining three liberals they could still be outvoted by the other five conservatives. Barrett was coy about her views on the Affordable Care Act during her confirmation hearings in October, but she has written that she thinks Roberts was wrong to uphold the law in 2012.
Could a new president and Congress make the case go away?
Many have suggested that, if Joe Biden assumes the presidency, his Justice Department could simply drop the case. But the administration did not bring the case; the GOP state officials did. And while normally the Justice Department’s job is to defend existing laws in court, in this case the ACA is being defended by a group of Democratic state attorneys general. A new administration could change that position, but that’s not the same as dropping the case.
Congress, on the other hand, could easily make the case moot. It could add back even a nominal financial penalty for not having insurance. It could eliminate the mandate altogether, although that would require 60 votes in the Senate under current rules. Congress could also pass a “severability” provision saying that, if any portion of the law is struck down, the rest should remain.
“The problem is not technical,” said Bagley. “It’s political.”
What is the timeline for a decision? Could the court delay implementation of its ruling?
The court usually hears oral arguments in a case months before it issues a decision. Unless the decision is unanimous or turns out to be very simple, Bagley said, he would expect to see an opinion “sometime in the spring.”
As to whether the court could find some or all of the law unconstitutional but delay when its decision takes effect, Bagley said that happened from time to time as recently as the 1970s. “That practice has been more or less abandoned,” he said, but in the case of a law so large, “you could imagine the Supreme Court using its discretion to say the decision wouldn’t take effect immediately.”
If the court does invalidate the entire ACA, Congress could act to fix things, but it’s unclear if it will be able to, especially if Republicans still control the Senate. If the justices strike the law, Bagley said, “I honestly think the likeliest outcome is that Congress runs around like a chicken with its head cut off, doesn’t come to a deal, and we’re back to where we were before 2010” when the ACA passed.
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
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.
Here are some key questions and answers about the case.
What are the possibilities for how the court could rule?
There is a long list of ways this could play out.
The justices 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.
It gets more complicated if the court decides that, as the plaintiffs argue, the individual mandate language without the penalty is unconstitutional and so closely tied to other parts of the law that some of them must fall as well.
Even there the court has choices. One option would be, as the Trump administration originally argued, to strike down the mandate and just the pieces of the law most closely related to it – which happen to include the insurance protections for people with preexisting conditions, an extremely popular provision of the law. The two parts are connected because the original purpose of the mandate was to make sure enough healthy people sign up for insurance to offset the added costs to insurers of sicker people.
Another option, of course, would be for the court to follow the lead of the Texas judge and strike down the entire law.
While that’s not the most likely outcome, said Bagley, if it happens it could be “a hot mess” for the nation’s entire health care system. As just one example, he said, “every hospital is getting paid pursuant to changes made by the ACA. How do you even go about making payments if the thing that you are looking to guide what those payments ought to be is itself invalid?”
What impact will new Justice Amy Coney Barrett have?
Perhaps a lot. Before the death of Justice Ruth Bader Ginsburg, most court observers thought the case was highly unlikely to result in the entire law being struck down. That’s because Chief Justice John Roberts voted to uphold the law in 2012, and again when it was challenged in a less sweeping way in 2015.
But with Barrett replacing Ginsburg, even if Roberts joined the court’s remaining three liberals they could still be outvoted by the other five conservatives. Barrett was coy about her views on the Affordable Care Act during her confirmation hearings in October, but she has written that she thinks Roberts was wrong to uphold the law in 2012.
Could a new president and Congress make the case go away?
Many have suggested that, if Joe Biden assumes the presidency, his Justice Department could simply drop the case. But the administration did not bring the case; the GOP state officials did. And while normally the Justice Department’s job is to defend existing laws in court, in this case the ACA is being defended by a group of Democratic state attorneys general. A new administration could change that position, but that’s not the same as dropping the case.
Congress, on the other hand, could easily make the case moot. It could add back even a nominal financial penalty for not having insurance. It could eliminate the mandate altogether, although that would require 60 votes in the Senate under current rules. Congress could also pass a “severability” provision saying that, if any portion of the law is struck down, the rest should remain.
“The problem is not technical,” said Bagley. “It’s political.”
What is the timeline for a decision? Could the court delay implementation of its ruling?
The court usually hears oral arguments in a case months before it issues a decision. Unless the decision is unanimous or turns out to be very simple, Bagley said, he would expect to see an opinion “sometime in the spring.”
As to whether the court could find some or all of the law unconstitutional but delay when its decision takes effect, Bagley said that happened from time to time as recently as the 1970s. “That practice has been more or less abandoned,” he said, but in the case of a law so large, “you could imagine the Supreme Court using its discretion to say the decision wouldn’t take effect immediately.”
If the court does invalidate the entire ACA, Congress could act to fix things, but it’s unclear if it will be able to, especially if Republicans still control the Senate. If the justices strike the law, Bagley said, “I honestly think the likeliest outcome is that Congress runs around like a chicken with its head cut off, doesn’t come to a deal, and we’re back to where we were before 2010” when the ACA passed.
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
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.
Here are some key questions and answers about the case.
What are the possibilities for how the court could rule?
There is a long list of ways this could play out.
The justices 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.
It gets more complicated if the court decides that, as the plaintiffs argue, the individual mandate language without the penalty is unconstitutional and so closely tied to other parts of the law that some of them must fall as well.
Even there the court has choices. One option would be, as the Trump administration originally argued, to strike down the mandate and just the pieces of the law most closely related to it – which happen to include the insurance protections for people with preexisting conditions, an extremely popular provision of the law. The two parts are connected because the original purpose of the mandate was to make sure enough healthy people sign up for insurance to offset the added costs to insurers of sicker people.
Another option, of course, would be for the court to follow the lead of the Texas judge and strike down the entire law.
While that’s not the most likely outcome, said Bagley, if it happens it could be “a hot mess” for the nation’s entire health care system. As just one example, he said, “every hospital is getting paid pursuant to changes made by the ACA. How do you even go about making payments if the thing that you are looking to guide what those payments ought to be is itself invalid?”
What impact will new Justice Amy Coney Barrett have?
Perhaps a lot. Before the death of Justice Ruth Bader Ginsburg, most court observers thought the case was highly unlikely to result in the entire law being struck down. That’s because Chief Justice John Roberts voted to uphold the law in 2012, and again when it was challenged in a less sweeping way in 2015.
But with Barrett replacing Ginsburg, even if Roberts joined the court’s remaining three liberals they could still be outvoted by the other five conservatives. Barrett was coy about her views on the Affordable Care Act during her confirmation hearings in October, but she has written that she thinks Roberts was wrong to uphold the law in 2012.
Could a new president and Congress make the case go away?
Many have suggested that, if Joe Biden assumes the presidency, his Justice Department could simply drop the case. But the administration did not bring the case; the GOP state officials did. And while normally the Justice Department’s job is to defend existing laws in court, in this case the ACA is being defended by a group of Democratic state attorneys general. A new administration could change that position, but that’s not the same as dropping the case.
Congress, on the other hand, could easily make the case moot. It could add back even a nominal financial penalty for not having insurance. It could eliminate the mandate altogether, although that would require 60 votes in the Senate under current rules. Congress could also pass a “severability” provision saying that, if any portion of the law is struck down, the rest should remain.
“The problem is not technical,” said Bagley. “It’s political.”
What is the timeline for a decision? Could the court delay implementation of its ruling?
The court usually hears oral arguments in a case months before it issues a decision. Unless the decision is unanimous or turns out to be very simple, Bagley said, he would expect to see an opinion “sometime in the spring.”
As to whether the court could find some or all of the law unconstitutional but delay when its decision takes effect, Bagley said that happened from time to time as recently as the 1970s. “That practice has been more or less abandoned,” he said, but in the case of a law so large, “you could imagine the Supreme Court using its discretion to say the decision wouldn’t take effect immediately.”
If the court does invalidate the entire ACA, Congress could act to fix things, but it’s unclear if it will be able to, especially if Republicans still control the Senate. If the justices strike the law, Bagley said, “I honestly think the likeliest outcome is that Congress runs around like a chicken with its head cut off, doesn’t come to a deal, and we’re back to where we were before 2010” when the ACA passed.
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
Without Ginsburg, judicial threats to the ACA, reproductive rights heighten
On Feb. 27, 2018, I got an email from the Heritage Foundation that alerted me to a news conference that afternoon held by Republican attorneys general of Texas and other states. It was referred to only as a “discussion about the Affordable Care Act lawsuit.”
I sent the following note to my editor: “I’m off to the Hill anyway. I could stop by this. You never know what it might morph into.”
Few people took that case very seriously – barely a handful of reporters attended the news conference. But it has now “morphed into” the latest existential threat to the Affordable Care Act, scheduled for oral arguments at the Supreme Court a week after the general election in November. And with the death of Justice Ruth Bader Ginsburg on Friday, that case could well morph into the threat that brings down the law in its entirety.
Democrats are raising alarms about the future of the law without Ms. Ginsburg. House Speaker Nancy Pelosi, speaking on ABC’s “This Week” Sunday morning, said that part of the strategy by President Trump and Senate Republicans to quickly fill her seat was to help undermine the ACA.
“The president is rushing to make some kind of a decision because … Nov. 10 is when the arguments begin on the Affordable Care Act,” she said. “He doesn’t want to crush the virus. He wants to crush the Affordable Care Act.”
Ms. Ginsburg’s death could throw an already chaotic general election campaign during a pandemic into even more turmoil.
Let’s take them one at a time.
The ACA under fire – again
The GOP attorneys general argued in February 2018 that the Republican-sponsored tax cut bill Congress passed two months earlier had rendered the ACA unconstitutional by reducing to zero the ACA’s penalty for not having insurance. They based their argument on Chief Justice John Roberts’ 2012 conclusion that the ACA was valid, interpreting that penalty as a constitutionally appropriate tax.
Most legal scholars, including several who challenged the law before the Supreme Court in 2012 and again in 2015, find the argument that the entire law should fall to be unconvincing. “If courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an ‘all or nothing’ proposition,” wrote a group of conservative and liberal law professors in a brief filed in the case.
Still, in December 2018, U.S. District Judge Reed O’Connor in Texas accepted the GOP argument and declared the law unconstitutional. In December 2019, a three-judge 5th Circuit appeals court panel in New Orleans agreed that without the penalty the requirement to buy insurance is unconstitutional. But it sent the case back to Mr. O’Connor to suggest that perhaps the entire law need not fall.
Not wanting to wait the months or years that reconsideration would take, Democratic attorneys general defending the ACA asked the Supreme Court to hear the case this year. (Democrats are defending the law in court because the Trump administration decided to support the GOP attorneys general’s case.) The court agreed to take the case but scheduled arguments for the week after the November election.
While the fate of the ACA was and is a live political issue, few legal observers were terribly worried about the legal outcome of the case, now known as Texas v. California, if only because the case seemed much weaker than the 2012 and 2015 cases in which Mr. Roberts joined the court’s four liberals. In the 2015 case, which challenged the validity of federal tax subsidies helping millions of Americans buy health insurance on the ACA’s marketplaces, both Mr. Roberts and now-retired Justice Anthony Kennedy voted to uphold the law.
But without Ms. Ginsburg, the case could wind up in a 4-4 tie, even if Mr. Roberts supports the law’s constitutionality. That could let the lower-court ruling stand, although it would not be binding on other courts outside of the 5th Circuit. The court could also put off the arguments or, if the Republican Senate replaces Ms. Ginsburg with another conservative justice before arguments are heard, Republicans could secure a 5-4 ruling against the law. Some court observers argue that Justice Brett Kavanaugh has not favored invalidating an entire statute if only part of it is flawed and might not approve overturning the ACA. Still, what started out as an effort to energize Republican voters for the 2018 midterms after Congress failed to “repeal and replace” the health law in 2017 could end up throwing the nation’s entire health system into chaos.
At least 20 million Americans – and likely many more who sought coverage since the start of the coronavirus pandemic — who buy insurance through the ACA marketplaces or have Medicaid through the law’s expansion could lose coverage right away. Many millions more would lose the law’s popular protections guaranteeing coverage for people with preexisting health conditions, including those who have had COVID-19.
Adult children under age 26 years would no longer be guaranteed the right to remain on their parents’ health plans, and Medicare patients would lose enhanced prescription drug coverage. Women would lose guaranteed access to birth control at no out-of-pocket cost.
But a sudden elimination would affect more than just health care consumers. Insurance companies, drug companies, hospitals, and doctors have all changed the way they do business because of incentives and penalties in the health law. If it’s struck down, many of the “rules of the road” would literally be wiped away, including billing and payment mechanisms.
A new Democratic president could not drop the lawsuit because the Trump administration is not the plaintiff (the GOP attorneys general are). But a Democratic Congress and president could in theory make the entire issue go away by reinstating the penalty for failure to have insurance, even at a minimal amount. However, as far as the health law goes, for now, nothing is a sure thing.
As Nicholas Bagley, a law professor at the University of Michigan, Ann Arbor, who specializes in health issues, tweeted: “Among other things, the Affordable Care Act now dangles from a thread.”
Reproductive rights
A woman’s right to abortion – and even to birth control – also has been hanging by a thread at the high court for more than a decade. This past term, Mr. Roberts joined the liberals to invalidate a Louisiana law that would have closed most of the state’s abortion clinics, but he made it clear it was not a vote for abortion rights. The Louisiana law was too similar to a Texas law the court (without his vote) struck down in 2016, Mr. Roberts argued.
Ms. Ginsburg had been a stalwart supporter of reproductive freedom for women. In her nearly 3 decades on the court, she always voted with backers of abortion rights and birth control and led the dissenters in 2007 when the court upheld a federal ban on a specific abortion procedure.
Adding a justice opposed to abortion to the bench – which is what Trump has promised his supporters – would almost certainly tilt the court in favor of far more dramatic restrictions on the procedure and possibly an overturn of the landmark 1973 ruling Roe v. Wade.
But not only is abortion on the line: The court in recent years has repeatedly ruled that employers with religious objections can refuse to provide contraception.
And waiting in the lower-court pipeline are cases involving federal funding of Planned Parenthood in both the Medicaid and federal family planning programs, and the ability of individual health workers to decline to participate in abortion and other procedures.
For Ms. Ginsburg, those issues came down to a clear question of a woman’s guarantee of equal status under the law.
“Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation,’ ” she wrote in her dissent in that 2007 abortion case. “Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’ ”
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
On Feb. 27, 2018, I got an email from the Heritage Foundation that alerted me to a news conference that afternoon held by Republican attorneys general of Texas and other states. It was referred to only as a “discussion about the Affordable Care Act lawsuit.”
I sent the following note to my editor: “I’m off to the Hill anyway. I could stop by this. You never know what it might morph into.”
Few people took that case very seriously – barely a handful of reporters attended the news conference. But it has now “morphed into” the latest existential threat to the Affordable Care Act, scheduled for oral arguments at the Supreme Court a week after the general election in November. And with the death of Justice Ruth Bader Ginsburg on Friday, that case could well morph into the threat that brings down the law in its entirety.
Democrats are raising alarms about the future of the law without Ms. Ginsburg. House Speaker Nancy Pelosi, speaking on ABC’s “This Week” Sunday morning, said that part of the strategy by President Trump and Senate Republicans to quickly fill her seat was to help undermine the ACA.
“The president is rushing to make some kind of a decision because … Nov. 10 is when the arguments begin on the Affordable Care Act,” she said. “He doesn’t want to crush the virus. He wants to crush the Affordable Care Act.”
Ms. Ginsburg’s death could throw an already chaotic general election campaign during a pandemic into even more turmoil.
Let’s take them one at a time.
The ACA under fire – again
The GOP attorneys general argued in February 2018 that the Republican-sponsored tax cut bill Congress passed two months earlier had rendered the ACA unconstitutional by reducing to zero the ACA’s penalty for not having insurance. They based their argument on Chief Justice John Roberts’ 2012 conclusion that the ACA was valid, interpreting that penalty as a constitutionally appropriate tax.
Most legal scholars, including several who challenged the law before the Supreme Court in 2012 and again in 2015, find the argument that the entire law should fall to be unconvincing. “If courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an ‘all or nothing’ proposition,” wrote a group of conservative and liberal law professors in a brief filed in the case.
Still, in December 2018, U.S. District Judge Reed O’Connor in Texas accepted the GOP argument and declared the law unconstitutional. In December 2019, a three-judge 5th Circuit appeals court panel in New Orleans agreed that without the penalty the requirement to buy insurance is unconstitutional. But it sent the case back to Mr. O’Connor to suggest that perhaps the entire law need not fall.
Not wanting to wait the months or years that reconsideration would take, Democratic attorneys general defending the ACA asked the Supreme Court to hear the case this year. (Democrats are defending the law in court because the Trump administration decided to support the GOP attorneys general’s case.) The court agreed to take the case but scheduled arguments for the week after the November election.
While the fate of the ACA was and is a live political issue, few legal observers were terribly worried about the legal outcome of the case, now known as Texas v. California, if only because the case seemed much weaker than the 2012 and 2015 cases in which Mr. Roberts joined the court’s four liberals. In the 2015 case, which challenged the validity of federal tax subsidies helping millions of Americans buy health insurance on the ACA’s marketplaces, both Mr. Roberts and now-retired Justice Anthony Kennedy voted to uphold the law.
But without Ms. Ginsburg, the case could wind up in a 4-4 tie, even if Mr. Roberts supports the law’s constitutionality. That could let the lower-court ruling stand, although it would not be binding on other courts outside of the 5th Circuit. The court could also put off the arguments or, if the Republican Senate replaces Ms. Ginsburg with another conservative justice before arguments are heard, Republicans could secure a 5-4 ruling against the law. Some court observers argue that Justice Brett Kavanaugh has not favored invalidating an entire statute if only part of it is flawed and might not approve overturning the ACA. Still, what started out as an effort to energize Republican voters for the 2018 midterms after Congress failed to “repeal and replace” the health law in 2017 could end up throwing the nation’s entire health system into chaos.
At least 20 million Americans – and likely many more who sought coverage since the start of the coronavirus pandemic — who buy insurance through the ACA marketplaces or have Medicaid through the law’s expansion could lose coverage right away. Many millions more would lose the law’s popular protections guaranteeing coverage for people with preexisting health conditions, including those who have had COVID-19.
Adult children under age 26 years would no longer be guaranteed the right to remain on their parents’ health plans, and Medicare patients would lose enhanced prescription drug coverage. Women would lose guaranteed access to birth control at no out-of-pocket cost.
But a sudden elimination would affect more than just health care consumers. Insurance companies, drug companies, hospitals, and doctors have all changed the way they do business because of incentives and penalties in the health law. If it’s struck down, many of the “rules of the road” would literally be wiped away, including billing and payment mechanisms.
A new Democratic president could not drop the lawsuit because the Trump administration is not the plaintiff (the GOP attorneys general are). But a Democratic Congress and president could in theory make the entire issue go away by reinstating the penalty for failure to have insurance, even at a minimal amount. However, as far as the health law goes, for now, nothing is a sure thing.
As Nicholas Bagley, a law professor at the University of Michigan, Ann Arbor, who specializes in health issues, tweeted: “Among other things, the Affordable Care Act now dangles from a thread.”
Reproductive rights
A woman’s right to abortion – and even to birth control – also has been hanging by a thread at the high court for more than a decade. This past term, Mr. Roberts joined the liberals to invalidate a Louisiana law that would have closed most of the state’s abortion clinics, but he made it clear it was not a vote for abortion rights. The Louisiana law was too similar to a Texas law the court (without his vote) struck down in 2016, Mr. Roberts argued.
Ms. Ginsburg had been a stalwart supporter of reproductive freedom for women. In her nearly 3 decades on the court, she always voted with backers of abortion rights and birth control and led the dissenters in 2007 when the court upheld a federal ban on a specific abortion procedure.
Adding a justice opposed to abortion to the bench – which is what Trump has promised his supporters – would almost certainly tilt the court in favor of far more dramatic restrictions on the procedure and possibly an overturn of the landmark 1973 ruling Roe v. Wade.
But not only is abortion on the line: The court in recent years has repeatedly ruled that employers with religious objections can refuse to provide contraception.
And waiting in the lower-court pipeline are cases involving federal funding of Planned Parenthood in both the Medicaid and federal family planning programs, and the ability of individual health workers to decline to participate in abortion and other procedures.
For Ms. Ginsburg, those issues came down to a clear question of a woman’s guarantee of equal status under the law.
“Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation,’ ” she wrote in her dissent in that 2007 abortion case. “Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’ ”
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
On Feb. 27, 2018, I got an email from the Heritage Foundation that alerted me to a news conference that afternoon held by Republican attorneys general of Texas and other states. It was referred to only as a “discussion about the Affordable Care Act lawsuit.”
I sent the following note to my editor: “I’m off to the Hill anyway. I could stop by this. You never know what it might morph into.”
Few people took that case very seriously – barely a handful of reporters attended the news conference. But it has now “morphed into” the latest existential threat to the Affordable Care Act, scheduled for oral arguments at the Supreme Court a week after the general election in November. And with the death of Justice Ruth Bader Ginsburg on Friday, that case could well morph into the threat that brings down the law in its entirety.
Democrats are raising alarms about the future of the law without Ms. Ginsburg. House Speaker Nancy Pelosi, speaking on ABC’s “This Week” Sunday morning, said that part of the strategy by President Trump and Senate Republicans to quickly fill her seat was to help undermine the ACA.
“The president is rushing to make some kind of a decision because … Nov. 10 is when the arguments begin on the Affordable Care Act,” she said. “He doesn’t want to crush the virus. He wants to crush the Affordable Care Act.”
Ms. Ginsburg’s death could throw an already chaotic general election campaign during a pandemic into even more turmoil.
Let’s take them one at a time.
The ACA under fire – again
The GOP attorneys general argued in February 2018 that the Republican-sponsored tax cut bill Congress passed two months earlier had rendered the ACA unconstitutional by reducing to zero the ACA’s penalty for not having insurance. They based their argument on Chief Justice John Roberts’ 2012 conclusion that the ACA was valid, interpreting that penalty as a constitutionally appropriate tax.
Most legal scholars, including several who challenged the law before the Supreme Court in 2012 and again in 2015, find the argument that the entire law should fall to be unconvincing. “If courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an ‘all or nothing’ proposition,” wrote a group of conservative and liberal law professors in a brief filed in the case.
Still, in December 2018, U.S. District Judge Reed O’Connor in Texas accepted the GOP argument and declared the law unconstitutional. In December 2019, a three-judge 5th Circuit appeals court panel in New Orleans agreed that without the penalty the requirement to buy insurance is unconstitutional. But it sent the case back to Mr. O’Connor to suggest that perhaps the entire law need not fall.
Not wanting to wait the months or years that reconsideration would take, Democratic attorneys general defending the ACA asked the Supreme Court to hear the case this year. (Democrats are defending the law in court because the Trump administration decided to support the GOP attorneys general’s case.) The court agreed to take the case but scheduled arguments for the week after the November election.
While the fate of the ACA was and is a live political issue, few legal observers were terribly worried about the legal outcome of the case, now known as Texas v. California, if only because the case seemed much weaker than the 2012 and 2015 cases in which Mr. Roberts joined the court’s four liberals. In the 2015 case, which challenged the validity of federal tax subsidies helping millions of Americans buy health insurance on the ACA’s marketplaces, both Mr. Roberts and now-retired Justice Anthony Kennedy voted to uphold the law.
But without Ms. Ginsburg, the case could wind up in a 4-4 tie, even if Mr. Roberts supports the law’s constitutionality. That could let the lower-court ruling stand, although it would not be binding on other courts outside of the 5th Circuit. The court could also put off the arguments or, if the Republican Senate replaces Ms. Ginsburg with another conservative justice before arguments are heard, Republicans could secure a 5-4 ruling against the law. Some court observers argue that Justice Brett Kavanaugh has not favored invalidating an entire statute if only part of it is flawed and might not approve overturning the ACA. Still, what started out as an effort to energize Republican voters for the 2018 midterms after Congress failed to “repeal and replace” the health law in 2017 could end up throwing the nation’s entire health system into chaos.
At least 20 million Americans – and likely many more who sought coverage since the start of the coronavirus pandemic — who buy insurance through the ACA marketplaces or have Medicaid through the law’s expansion could lose coverage right away. Many millions more would lose the law’s popular protections guaranteeing coverage for people with preexisting health conditions, including those who have had COVID-19.
Adult children under age 26 years would no longer be guaranteed the right to remain on their parents’ health plans, and Medicare patients would lose enhanced prescription drug coverage. Women would lose guaranteed access to birth control at no out-of-pocket cost.
But a sudden elimination would affect more than just health care consumers. Insurance companies, drug companies, hospitals, and doctors have all changed the way they do business because of incentives and penalties in the health law. If it’s struck down, many of the “rules of the road” would literally be wiped away, including billing and payment mechanisms.
A new Democratic president could not drop the lawsuit because the Trump administration is not the plaintiff (the GOP attorneys general are). But a Democratic Congress and president could in theory make the entire issue go away by reinstating the penalty for failure to have insurance, even at a minimal amount. However, as far as the health law goes, for now, nothing is a sure thing.
As Nicholas Bagley, a law professor at the University of Michigan, Ann Arbor, who specializes in health issues, tweeted: “Among other things, the Affordable Care Act now dangles from a thread.”
Reproductive rights
A woman’s right to abortion – and even to birth control – also has been hanging by a thread at the high court for more than a decade. This past term, Mr. Roberts joined the liberals to invalidate a Louisiana law that would have closed most of the state’s abortion clinics, but he made it clear it was not a vote for abortion rights. The Louisiana law was too similar to a Texas law the court (without his vote) struck down in 2016, Mr. Roberts argued.
Ms. Ginsburg had been a stalwart supporter of reproductive freedom for women. In her nearly 3 decades on the court, she always voted with backers of abortion rights and birth control and led the dissenters in 2007 when the court upheld a federal ban on a specific abortion procedure.
Adding a justice opposed to abortion to the bench – which is what Trump has promised his supporters – would almost certainly tilt the court in favor of far more dramatic restrictions on the procedure and possibly an overturn of the landmark 1973 ruling Roe v. Wade.
But not only is abortion on the line: The court in recent years has repeatedly ruled that employers with religious objections can refuse to provide contraception.
And waiting in the lower-court pipeline are cases involving federal funding of Planned Parenthood in both the Medicaid and federal family planning programs, and the ability of individual health workers to decline to participate in abortion and other procedures.
For Ms. Ginsburg, those issues came down to a clear question of a woman’s guarantee of equal status under the law.
“Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation,’ ” she wrote in her dissent in that 2007 abortion case. “Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’ ”
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation), which is not affiliated with Kaiser Permanente.
Rapid changes to health system spurred by COVID might be here to stay
The U.S. health care system is famously resistant to government-imposed change. It took decades to create Medicare and Medicaid, mostly because of opposition from the medical-industrial complex. Then it was nearly another half-century before the passage of the Affordable Care Act.
“Health care is never going back to the way it was before,” said Gail Wilensky, a health economist who ran the Medicare and Medicaid programs for President George H.W. Bush in the early 1990s.
Ms. Wilensky is far from the only longtime observer of the American health care system to marvel at the speed of some long-sought changes. But experts warn that the breakthroughs may not all make the health system work better or make it less expensive.
That said, here are three trends that seem likely to continue.
Telehealth for all
Telehealth is not new; medical professionals have used it to reach patients in rural or remote settings since the late 1980s.
But even while technology has made video visits easier, it has failed to reach critical mass, largely because of political fights. Licensing has been one main obstacle – determining how a doctor in one state can legally treat a patient in a state where the doctor is not licensed.
The other obstacle, not surprisingly, is payment. Should a video visit be reimbursed at the same rate as an in-person visit? Will making it easier for doctors and other medical professionals to use telehealth encourage unnecessary care, thus driving up the nation’s $3.6 trillion health tab even more? Or could it replace care once provided free by phone?
Still, the pandemic has pushed aside those sticking points. Almost overnight, by necessity, every health care provider who can is delivering telemedicine. A new survey from Gallup found the number of patients reporting “virtual” medical visits more than doubled, from 12% to 27%, from late March to mid-May. That is attributable, at least in part, to Medicare having made it easier for doctors to bill for virtual visits.
It’s easy to see why many patients like video visits – there’s no parking to find and pay for, and it takes far less time out of a workday than going to an office.
Doctors and other practitioners seem more ambivalent. On one hand, it can be harder to examine a patient over video and some services just can’t be done via a digital connection. On the other hand, they can see more patients in the same amount of time and may need less support staff and possibly smaller offices if more visits are conducted virtually.
Of course, telemedicine doesn’t work for everyone. Many areas and patients don’t have reliable or robust broadband connections that make video visits work. And some patients, particularly the oldest seniors, lack the technological skills needed to connect.
Primary care doctors in peril
Another trend that has suddenly accelerated is worry over the nation’s dwindling supply of primary care doctors. The exodus of practitioners performing primary care has been a concern over the past several years, as baby boomer doctors retire and others have grown weary of more and more bureaucracy from government and private payers. Having faced a difficult financial crisis during the pandemic, more family physicians may move into retirement or seek other professional options.
At the same time, fewer current medical students are choosing specialties in primary care.
“I’ve been trying to raise the alarm about the kind of perilous future of primary care,” said Farzad Mostashari, MD, a top Department of Health & Human Services official in the Obama administration. Dr. Mostashari runs Aledade, a company that helps primary care doctors make the transition from fee-for-service medicine to new payment models.
The American Academy of Family Physicians reports that 70% of primary care physicians are reporting declines in patient volume of 50% or more since March, and 40% have laid off or furloughed staff. The AAFP has joined other primary care and insurance groups in asking HHS for an infusion of cash.
“This is absolutely essential to effectively treat patients today and to maintain their ongoing operations until we overcome this public health emergency,” the groups wrote.
One easy way to help keep primary care doctors afloat would be to pay them not according to what they do, but in a lump sum to keep patients healthy. This move from fee-for-service to what’s known as capitation or value-based care has unfolded gradually and was championed in the Affordable Care Act.
But some experts argue it needs to happen more quickly and they predict that the coronavirus pandemic could finally mark the beginning of the end for doctors who still charge for each service individually. Dr. Mostashari, who spends his time helping doctors make the transition, said in times like these, it would make more sense for primary care doctors to have “a steady monthly revenue stream, and [the doctor] can decide the best way to deliver that care: unlimited texts, phone calls, video calls. The goal is to give you satisfactory outcomes and a great patient experience.”
Still, many physicians, particularly those in solo or small practices, worry about the potential financial risk – especially the possibility of getting paid less if they don’t meet certain benchmarks that the doctors may not be able to directly control.
But with many practices now ground to a halt, or just starting to reopen, those physicians who get paid per patient rather than per service are in a much better position to stay afloat. That model may gain traction as doctors ponder the next pandemic, or the next wave of this one.
Hospitals on the decline?
The pandemic also might lead to less emphasis on hospital-based care. While hospitals in many parts of the country have obviously been full of very sick COVID patients, they have closed down other nonemergency services to preserve supplies and resources to fight the pandemic. People with other ailments have stayed away in droves even when services were available, for fear of catching something worse than what they already have.
Many experts predict that care won’t just snap back when the current emergency wanes. Mark Smith, MD, former president of the California Health Care Foundation, said among consumers, a switch has been flipped. “Overnight it seems we’ve gone from high-touch to no-touch.”
Which is not great for hospitals that have spent millions trying to attract patients to their labor-and-delivery units, orthopedic centers, and other parts of the facility that once generated lots of income.
Even more concerning is that hospitals’ ability to weather the current financial shock varies widely. Those most in danger of closing are in rural and underserved areas, where patients could wind up with even less access to care that is scarce already.
All of which underscores the point that not all these changes will necessarily be good for the health system or society. Financial pressures could end up driving more consolidation, which could push up prices as large groups of hospitals and doctors gain more bargaining clout.
But the changes are definitely happening at a pace few have ever seen, said Ms. Wilensky, “When you’re forced to find different ways of doing things, and you find out they are easier and more efficient, it’s going to be hard to go back to the old way.”
A version of this article originally appeared on Kaiser Health News, which is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
The U.S. health care system is famously resistant to government-imposed change. It took decades to create Medicare and Medicaid, mostly because of opposition from the medical-industrial complex. Then it was nearly another half-century before the passage of the Affordable Care Act.
“Health care is never going back to the way it was before,” said Gail Wilensky, a health economist who ran the Medicare and Medicaid programs for President George H.W. Bush in the early 1990s.
Ms. Wilensky is far from the only longtime observer of the American health care system to marvel at the speed of some long-sought changes. But experts warn that the breakthroughs may not all make the health system work better or make it less expensive.
That said, here are three trends that seem likely to continue.
Telehealth for all
Telehealth is not new; medical professionals have used it to reach patients in rural or remote settings since the late 1980s.
But even while technology has made video visits easier, it has failed to reach critical mass, largely because of political fights. Licensing has been one main obstacle – determining how a doctor in one state can legally treat a patient in a state where the doctor is not licensed.
The other obstacle, not surprisingly, is payment. Should a video visit be reimbursed at the same rate as an in-person visit? Will making it easier for doctors and other medical professionals to use telehealth encourage unnecessary care, thus driving up the nation’s $3.6 trillion health tab even more? Or could it replace care once provided free by phone?
Still, the pandemic has pushed aside those sticking points. Almost overnight, by necessity, every health care provider who can is delivering telemedicine. A new survey from Gallup found the number of patients reporting “virtual” medical visits more than doubled, from 12% to 27%, from late March to mid-May. That is attributable, at least in part, to Medicare having made it easier for doctors to bill for virtual visits.
It’s easy to see why many patients like video visits – there’s no parking to find and pay for, and it takes far less time out of a workday than going to an office.
Doctors and other practitioners seem more ambivalent. On one hand, it can be harder to examine a patient over video and some services just can’t be done via a digital connection. On the other hand, they can see more patients in the same amount of time and may need less support staff and possibly smaller offices if more visits are conducted virtually.
Of course, telemedicine doesn’t work for everyone. Many areas and patients don’t have reliable or robust broadband connections that make video visits work. And some patients, particularly the oldest seniors, lack the technological skills needed to connect.
Primary care doctors in peril
Another trend that has suddenly accelerated is worry over the nation’s dwindling supply of primary care doctors. The exodus of practitioners performing primary care has been a concern over the past several years, as baby boomer doctors retire and others have grown weary of more and more bureaucracy from government and private payers. Having faced a difficult financial crisis during the pandemic, more family physicians may move into retirement or seek other professional options.
At the same time, fewer current medical students are choosing specialties in primary care.
“I’ve been trying to raise the alarm about the kind of perilous future of primary care,” said Farzad Mostashari, MD, a top Department of Health & Human Services official in the Obama administration. Dr. Mostashari runs Aledade, a company that helps primary care doctors make the transition from fee-for-service medicine to new payment models.
The American Academy of Family Physicians reports that 70% of primary care physicians are reporting declines in patient volume of 50% or more since March, and 40% have laid off or furloughed staff. The AAFP has joined other primary care and insurance groups in asking HHS for an infusion of cash.
“This is absolutely essential to effectively treat patients today and to maintain their ongoing operations until we overcome this public health emergency,” the groups wrote.
One easy way to help keep primary care doctors afloat would be to pay them not according to what they do, but in a lump sum to keep patients healthy. This move from fee-for-service to what’s known as capitation or value-based care has unfolded gradually and was championed in the Affordable Care Act.
But some experts argue it needs to happen more quickly and they predict that the coronavirus pandemic could finally mark the beginning of the end for doctors who still charge for each service individually. Dr. Mostashari, who spends his time helping doctors make the transition, said in times like these, it would make more sense for primary care doctors to have “a steady monthly revenue stream, and [the doctor] can decide the best way to deliver that care: unlimited texts, phone calls, video calls. The goal is to give you satisfactory outcomes and a great patient experience.”
Still, many physicians, particularly those in solo or small practices, worry about the potential financial risk – especially the possibility of getting paid less if they don’t meet certain benchmarks that the doctors may not be able to directly control.
But with many practices now ground to a halt, or just starting to reopen, those physicians who get paid per patient rather than per service are in a much better position to stay afloat. That model may gain traction as doctors ponder the next pandemic, or the next wave of this one.
Hospitals on the decline?
The pandemic also might lead to less emphasis on hospital-based care. While hospitals in many parts of the country have obviously been full of very sick COVID patients, they have closed down other nonemergency services to preserve supplies and resources to fight the pandemic. People with other ailments have stayed away in droves even when services were available, for fear of catching something worse than what they already have.
Many experts predict that care won’t just snap back when the current emergency wanes. Mark Smith, MD, former president of the California Health Care Foundation, said among consumers, a switch has been flipped. “Overnight it seems we’ve gone from high-touch to no-touch.”
Which is not great for hospitals that have spent millions trying to attract patients to their labor-and-delivery units, orthopedic centers, and other parts of the facility that once generated lots of income.
Even more concerning is that hospitals’ ability to weather the current financial shock varies widely. Those most in danger of closing are in rural and underserved areas, where patients could wind up with even less access to care that is scarce already.
All of which underscores the point that not all these changes will necessarily be good for the health system or society. Financial pressures could end up driving more consolidation, which could push up prices as large groups of hospitals and doctors gain more bargaining clout.
But the changes are definitely happening at a pace few have ever seen, said Ms. Wilensky, “When you’re forced to find different ways of doing things, and you find out they are easier and more efficient, it’s going to be hard to go back to the old way.”
A version of this article originally appeared on Kaiser Health News, which is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
The U.S. health care system is famously resistant to government-imposed change. It took decades to create Medicare and Medicaid, mostly because of opposition from the medical-industrial complex. Then it was nearly another half-century before the passage of the Affordable Care Act.
“Health care is never going back to the way it was before,” said Gail Wilensky, a health economist who ran the Medicare and Medicaid programs for President George H.W. Bush in the early 1990s.
Ms. Wilensky is far from the only longtime observer of the American health care system to marvel at the speed of some long-sought changes. But experts warn that the breakthroughs may not all make the health system work better or make it less expensive.
That said, here are three trends that seem likely to continue.
Telehealth for all
Telehealth is not new; medical professionals have used it to reach patients in rural or remote settings since the late 1980s.
But even while technology has made video visits easier, it has failed to reach critical mass, largely because of political fights. Licensing has been one main obstacle – determining how a doctor in one state can legally treat a patient in a state where the doctor is not licensed.
The other obstacle, not surprisingly, is payment. Should a video visit be reimbursed at the same rate as an in-person visit? Will making it easier for doctors and other medical professionals to use telehealth encourage unnecessary care, thus driving up the nation’s $3.6 trillion health tab even more? Or could it replace care once provided free by phone?
Still, the pandemic has pushed aside those sticking points. Almost overnight, by necessity, every health care provider who can is delivering telemedicine. A new survey from Gallup found the number of patients reporting “virtual” medical visits more than doubled, from 12% to 27%, from late March to mid-May. That is attributable, at least in part, to Medicare having made it easier for doctors to bill for virtual visits.
It’s easy to see why many patients like video visits – there’s no parking to find and pay for, and it takes far less time out of a workday than going to an office.
Doctors and other practitioners seem more ambivalent. On one hand, it can be harder to examine a patient over video and some services just can’t be done via a digital connection. On the other hand, they can see more patients in the same amount of time and may need less support staff and possibly smaller offices if more visits are conducted virtually.
Of course, telemedicine doesn’t work for everyone. Many areas and patients don’t have reliable or robust broadband connections that make video visits work. And some patients, particularly the oldest seniors, lack the technological skills needed to connect.
Primary care doctors in peril
Another trend that has suddenly accelerated is worry over the nation’s dwindling supply of primary care doctors. The exodus of practitioners performing primary care has been a concern over the past several years, as baby boomer doctors retire and others have grown weary of more and more bureaucracy from government and private payers. Having faced a difficult financial crisis during the pandemic, more family physicians may move into retirement or seek other professional options.
At the same time, fewer current medical students are choosing specialties in primary care.
“I’ve been trying to raise the alarm about the kind of perilous future of primary care,” said Farzad Mostashari, MD, a top Department of Health & Human Services official in the Obama administration. Dr. Mostashari runs Aledade, a company that helps primary care doctors make the transition from fee-for-service medicine to new payment models.
The American Academy of Family Physicians reports that 70% of primary care physicians are reporting declines in patient volume of 50% or more since March, and 40% have laid off or furloughed staff. The AAFP has joined other primary care and insurance groups in asking HHS for an infusion of cash.
“This is absolutely essential to effectively treat patients today and to maintain their ongoing operations until we overcome this public health emergency,” the groups wrote.
One easy way to help keep primary care doctors afloat would be to pay them not according to what they do, but in a lump sum to keep patients healthy. This move from fee-for-service to what’s known as capitation or value-based care has unfolded gradually and was championed in the Affordable Care Act.
But some experts argue it needs to happen more quickly and they predict that the coronavirus pandemic could finally mark the beginning of the end for doctors who still charge for each service individually. Dr. Mostashari, who spends his time helping doctors make the transition, said in times like these, it would make more sense for primary care doctors to have “a steady monthly revenue stream, and [the doctor] can decide the best way to deliver that care: unlimited texts, phone calls, video calls. The goal is to give you satisfactory outcomes and a great patient experience.”
Still, many physicians, particularly those in solo or small practices, worry about the potential financial risk – especially the possibility of getting paid less if they don’t meet certain benchmarks that the doctors may not be able to directly control.
But with many practices now ground to a halt, or just starting to reopen, those physicians who get paid per patient rather than per service are in a much better position to stay afloat. That model may gain traction as doctors ponder the next pandemic, or the next wave of this one.
Hospitals on the decline?
The pandemic also might lead to less emphasis on hospital-based care. While hospitals in many parts of the country have obviously been full of very sick COVID patients, they have closed down other nonemergency services to preserve supplies and resources to fight the pandemic. People with other ailments have stayed away in droves even when services were available, for fear of catching something worse than what they already have.
Many experts predict that care won’t just snap back when the current emergency wanes. Mark Smith, MD, former president of the California Health Care Foundation, said among consumers, a switch has been flipped. “Overnight it seems we’ve gone from high-touch to no-touch.”
Which is not great for hospitals that have spent millions trying to attract patients to their labor-and-delivery units, orthopedic centers, and other parts of the facility that once generated lots of income.
Even more concerning is that hospitals’ ability to weather the current financial shock varies widely. Those most in danger of closing are in rural and underserved areas, where patients could wind up with even less access to care that is scarce already.
All of which underscores the point that not all these changes will necessarily be good for the health system or society. Financial pressures could end up driving more consolidation, which could push up prices as large groups of hospitals and doctors gain more bargaining clout.
But the changes are definitely happening at a pace few have ever seen, said Ms. Wilensky, “When you’re forced to find different ways of doing things, and you find out they are easier and more efficient, it’s going to be hard to go back to the old way.”
A version of this article originally appeared on Kaiser Health News, which is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Texas judge strikes down ACA putting law in peril — again
The future of the Affordable Care Act is threatened – again – this time by a ruling Friday from a federal district court judge in Texas.
Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. Judge O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.
That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. Judge O’Connor’s decision said that without that penalty, the law no longer met that constitutional test.
“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” Judge O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will impact the coverage for those people – the final decision will likely not come until the case reaches the Supreme Court again.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, which oversees those insurance exchanges, said in a tweet: “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”
The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.
It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, from Medicare and Medicaid to generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.
The case, Texas v. United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.
In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.
The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.
The protections for people with preexisting conditions was one of the top health issues in the midterm elections in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.
President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell (R-Ky.) and presumed incoming House Speaker Nancy Pelosi (D-Calif.) to fix the problem. He tweeted Friday night that “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”
But congressional leaders were quick to point out that the suit is far from over.
“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer (D-N.Y.).
Many legal experts agreed with that. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School professor Nicholas Bagley, an expert in health law.
Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.
AGA believes that Congress must include provisions to ensure patient access to specialty care and other essential patient protections in any new health care legislation. Read more at http://ow.ly/kzIz30n1cBo.
Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
The future of the Affordable Care Act is threatened – again – this time by a ruling Friday from a federal district court judge in Texas.
Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. Judge O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.
That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. Judge O’Connor’s decision said that without that penalty, the law no longer met that constitutional test.
“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” Judge O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will impact the coverage for those people – the final decision will likely not come until the case reaches the Supreme Court again.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, which oversees those insurance exchanges, said in a tweet: “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”
The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.
It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, from Medicare and Medicaid to generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.
The case, Texas v. United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.
In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.
The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.
The protections for people with preexisting conditions was one of the top health issues in the midterm elections in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.
President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell (R-Ky.) and presumed incoming House Speaker Nancy Pelosi (D-Calif.) to fix the problem. He tweeted Friday night that “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”
But congressional leaders were quick to point out that the suit is far from over.
“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer (D-N.Y.).
Many legal experts agreed with that. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School professor Nicholas Bagley, an expert in health law.
Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.
AGA believes that Congress must include provisions to ensure patient access to specialty care and other essential patient protections in any new health care legislation. Read more at http://ow.ly/kzIz30n1cBo.
Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
The future of the Affordable Care Act is threatened – again – this time by a ruling Friday from a federal district court judge in Texas.
Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. Judge O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.
That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. Judge O’Connor’s decision said that without that penalty, the law no longer met that constitutional test.
“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” Judge O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will impact the coverage for those people – the final decision will likely not come until the case reaches the Supreme Court again.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, which oversees those insurance exchanges, said in a tweet: “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”
The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.
It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, from Medicare and Medicaid to generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.
The case, Texas v. United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.
In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.
The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.
The protections for people with preexisting conditions was one of the top health issues in the midterm elections in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.
President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell (R-Ky.) and presumed incoming House Speaker Nancy Pelosi (D-Calif.) to fix the problem. He tweeted Friday night that “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”
But congressional leaders were quick to point out that the suit is far from over.
“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer (D-N.Y.).
Many legal experts agreed with that. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School professor Nicholas Bagley, an expert in health law.
Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.
AGA believes that Congress must include provisions to ensure patient access to specialty care and other essential patient protections in any new health care legislation. Read more at http://ow.ly/kzIz30n1cBo.
Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
Texas judge strikes down ACA putting law in peril — again
The future of the Affordable Care Act is threatened – again – this time by a ruling Friday from a federal district court judge in Texas.
Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. Judge O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.
That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. Judge O’Connor’s decision said that without that penalty, the law no longer met that constitutional test.
“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” Judge O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will impact the coverage for those people – the final decision will likely not come until the case reaches the Supreme Court again.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, which oversees those insurance exchanges, said in a tweet: “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”
The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.
It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, from Medicare and Medicaid to generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.
The case, Texas v. United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.
In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.
The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.
The protections for people with preexisting conditions was one of the top health issues in the midterm elections in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.
President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell (R-Ky.) and presumed incoming House Speaker Nancy Pelosi (D-Calif.) to fix the problem. He tweeted Friday night that “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”
But congressional leaders were quick to point out that the suit is far from over.
“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer (D-N.Y.).
Many legal experts agreed with that. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School professor Nicholas Bagley, an expert in health law.
Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.
Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
The future of the Affordable Care Act is threatened – again – this time by a ruling Friday from a federal district court judge in Texas.
Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. Judge O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.
That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. Judge O’Connor’s decision said that without that penalty, the law no longer met that constitutional test.
“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” Judge O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will impact the coverage for those people – the final decision will likely not come until the case reaches the Supreme Court again.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, which oversees those insurance exchanges, said in a tweet: “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”
The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.
It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, from Medicare and Medicaid to generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.
The case, Texas v. United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.
In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.
The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.
The protections for people with preexisting conditions was one of the top health issues in the midterm elections in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.
President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell (R-Ky.) and presumed incoming House Speaker Nancy Pelosi (D-Calif.) to fix the problem. He tweeted Friday night that “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”
But congressional leaders were quick to point out that the suit is far from over.
“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer (D-N.Y.).
Many legal experts agreed with that. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School professor Nicholas Bagley, an expert in health law.
Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.
Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
The future of the Affordable Care Act is threatened – again – this time by a ruling Friday from a federal district court judge in Texas.
Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors who brought the case. Judge O’Connor said the tax bill passed by Congress in December 2017 effectively rendered the entire health law unconstitutional.
That tax measure eliminated the penalty for not having insurance. An earlier Supreme Court decision upheld the ACA based on the view that the penalty was a tax and thus the law was valid because it relied on appropriate power allowed Congress under the Constitution. Judge O’Connor’s decision said that without that penalty, the law no longer met that constitutional test.
“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” Judge O’Connor wrote in his 55-page decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
The decision came just hours before the end of open enrollment for ACA plans in most states that use the federal HealthCare.gov insurance exchange. It is not expected that the ruling will impact the coverage for those people – the final decision will likely not come until the case reaches the Supreme Court again.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, which oversees those insurance exchanges, said in a tweet: “The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”
The 16 Democratic state attorneys general who intervened in the case to defend the health law immediately vowed to appeal.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said a statement from California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015.
It is hard to overstate what would happen to the nation’s health care system if the decision is ultimately upheld. The Affordable Care Act touched almost every aspect of health care, from Medicare and Medicaid to generic biologic drugs, the Indian Health Service, and public health changes like calorie counts on menus.
The case, Texas v. United States, was filed in February. The plaintiffs argued that because the Supreme Court upheld the ACA in 2012 as a constitutional use of its taxing power, the elimination of the tax makes the rest of the law unconstitutional.
In June, the Justice Department announced it would not fully defend the law in court. While the Trump administration said it did not agree with the plaintiffs that the tax law meant the entire ACA was unconstitutional, it said that the provisions of the law guaranteeing that people with preexisting health conditions could purchase coverage at the same price as everyone else were so inextricably linked to the tax penalty that they should be struck.
The administration urged the court to declare those provisions invalid beginning Jan. 1, 2019. That is the day the tax penalty for not having insurance disappears.
The protections for people with preexisting conditions was one of the top health issues in the midterm elections in November. While the issue mostly played to the advantage of Democrats, one of the Republican plaintiffs, Missouri Attorney General Josh Hawley, defeated Democratic incumbent Sen. Claire McCaskill. Another plaintiff, West Virginia Attorney General Patrick Morrisey, lost to Democratic incumbent Sen. Joe Manchin.
President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell (R-Ky.) and presumed incoming House Speaker Nancy Pelosi (D-Calif.) to fix the problem. He tweeted Friday night that “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!”
But congressional leaders were quick to point out that the suit is far from over.
“The ruling seems to be based on faulty legal reasoning and hopefully it will be overturned,” said a statement from Senate Minority Leader Chuck Schumer (D-N.Y.).
Many legal experts agreed with that. “This is insanity in print, and it will not stand up on appeal,” tweeted University of Michigan Law School professor Nicholas Bagley, an expert in health law.
Even some conservatives were left scratching their heads. “Congress acted last year to repeal the mandate, but leave everything else in place and the courts should have deferred to that,” tweeted former congressional GOP aide Chris Jacobs.
Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
The election’s impact on health care: Some bellwether races to watch
Voters this year have told pollsters in no uncertain terms that health care is important to them. In particular, maintaining insurance protections for preexisting conditions is the top issue to many.
But the results of the midterm elections are likely to have a major impact on a broad array of other health issues that touch every single American. And how those issues are addressed will depend in large part on which party controls the U.S. House and Senate, governors’ mansions, and state legislatures around the country.
All politics is local, and no single race is likely to determine national or even state action. But some key contests can provide something of a barometer of what’s likely to happen – or not happen – over the next 2 years.
For example, keep an eye on Kansas. The razor-tight race for governor could determine whether the state expands Medicaid to all people with low incomes, as allowed under the Affordable Care Act. The legislature in that deep-red state passed a bill to accept expansion in 2017, but it could not override the veto of then-Gov. Sam Brownback. Of the candidates running for governor in 2018, Democrat Laura Kelly supports expansion, while Republican Kris Kobach does not.
Here are three big health issues that could be dramatically affected by Tuesday’s vote.
1. The Affordable Care Act
Protections for preexisting conditions are only a small part of the ACA. The law also made big changes to Medicare and Medicaid, employer-provided health plans, and the generic drug approval process, among other things.
Republicans ran hard on promises to get rid of the law in every election since it passed in 2010. But when the GOP finally got control of the House, the Senate, and the White House in 2017, Republicans found they could not reach agreement on how to “repeal and replace” the law.
This year has Democrats on the attack over the votes Republicans took on various proposals to remake the health law. Probably the most endangered Democrat in the Senate, Heidi Heitkamp of North Dakota, has hammered her Republican opponent, U.S. Rep. Kevin Cramer, over his votes in the House for the unsuccessful repeal-and-replace bills. Rep. Cramer said that despite his votes he supports protections for preexisting conditions, but he has not said what he would do or get behind that could have that effect.
Polls suggest Rep. Cramer has a healthy lead in that race, but if Sen. Heitkamp pulled off a surprise win, health care might well get some of the credit.
And in New Jersey, Rep. Tom MacArthur, the moderate Republican who wrote the language that got the GOP health bill passed in the House in 2017, is in a heated race with Democrat Andy Kim, who has never held elective office. The overriding issue in that race, too, is health care.
It is not just congressional action that has Republicans playing defense on the ACA. In February, 18 GOP attorneys general and 2 GOP governors filed a lawsuit seeking a judgment that the law is now unconstitutional because Congress in the 2017 tax bill repealed the penalty for not having insurance. Two of those attorneys general – Missouri’s Josh Hawley and West Virginia’s Patrick Morrisey – are running for the Senate. Both states overwhelmingly supported President Donald Trump in 2016.
The attorneys general are running against Democratic incumbents – Claire McCaskill of Missouri and Joe Manchin of West Virginia. And both Republicans are being hotly criticized by their opponents for their participation in the lawsuit.
Although Sen. Manchin appears to have taken a lead, the Hawley-McCaskill race is rated a toss-up by political analysts.
But in the end the fate of the ACA depends less on an individual race than on which party winds up in control of Congress.
“If Democrats take the House ... then any attempt at repeal-and-replace will be kaput,” said John McDonough, a former Democratic Senate aide who helped write the ACA and now teaches at the Harvard School of Public Health, Boston.
Conservative health care strategist Chris Jacobs, who worked for Republicans on Capitol Hill, said a new repeal-and-replace effort might not happen even if Republicans are successful Tuesday.
“Republicans, if they maintain the majority in the House, will have a margin of a half-dozen seats – if they are lucky,” he said. That likely would not allow the party to push through another controversial effort to change the law. Currently there are 42 more Republicans than Democrats in the House. Even so, the GOP barely got its health bill passed out of the House in 2017.
And political strategists say that, when the dust clears after voting, the numbers in the Senate may not be much different so change could be hard there too. Republicans, even with a small majority last year, could not pass a repeal bill there.
2. Medicaid expansion
The Supreme Court in 2012 made optional the ACA’s expansion of Medicaid to cover all low-income Americans up to 138% of the poverty line ($16,753 for an individual in 2018). Most states have now expanded, particularly since the federal government is paying the vast majority of the cost: 94% in 2018, gradually dropping to 90% in 2020.
Still, 17 states, all with GOP governors or state legislatures (or both), have yet to expand Medicaid.
Mr. McDonough is confident that’s about to change. “I’m wondering if we’re on the cusp of a Medicaid wave,” he said.
Four states – Idaho, Montana, Nebraska, and Utah – have Medicaid expansion questions on their ballots. All but Montana have yet to expand the program. Montana’s question would eliminate the 2019 sunset date included in its expansion in 2016. But it will be interesting to watch results because the measure has run into big-pocketed opposition: the tobacco industry. The initiative would increase taxes on cigarettes and other tobacco products to fund the state’s increased Medicaid costs.
In Idaho, the ballot measure is being embraced by a number of Republican leaders. GOP Gov. Butch Otter, who is retiring after three terms, endorsed it Oct. 30.
But the issue is in play in other states, too. Several nonexpansion states have close or closer-than-expected races for governor where the Democrat has made Medicaid expansion a priority.
In Florida, one of the largest states not to have expanded Medicaid, the Republican candidate for governor, former U.S. Rep. Ron DeSantis, opposes expansion. His Democratic opponent, Tallahassee Mayor Andrew Gillum, supports it.
In Georgia, the gubernatorial candidates, Democrat Stacey Abrams and Republican Brian Kemp, are also on opposite sides of the Medicaid expansion debate.
However, the legislatures in both states have opposed the expansion, and it’s not clear if they would be swayed by arguments from a new governor.
3. Medicare
Until recently, Republicans have remained relatively quiet about efforts to change the popular Medicare program for seniors and people with disabilities.
Their new talking point is that proposals to expand the program – such as the often-touted “Medicare-for-all,” which an increasing number of Democrats are embracing – could threaten the existing program.
“Medicare is at significant risk of being cut if Democrats take over the House,” Rep. Greg Gianforte (R-Mont.) told the Lee Montana Newspapers. “Medicare-for-all is Medicare for none. It will gut Medicare, end the VA [Department of Veterans Affairs] as we know it, and force Montana seniors to the back of the line.”
Gianforte’s Democratic opponent, Kathleen Williams, is proposing another idea popular with Democrats: allowing people aged 55 years and over to “buy into” Medicare coverage. That race, too, is very tight.
Meanwhile, back in Washington, congressional Republicans are more concerned with how Medicare and other large government social programs are threatening the budget.
“Sooner or later we are going to run out of other people’s money,” said Mr. Jacobs.
Senate Majority Leader Mitch McConnell (R-Ky.) suggested in an Oct. 16 interview with Bloomberg News that entitlement programs like Medicare are “the real driver of the debt by any objective standard,” but that bipartisan cooperation will be needed to address that problem
Republican Mr. Jacobs and Democrat Mr. McDonough think that’s unlikely any time soon.
“Why would Democrats give that up as an issue heading into 2020?” asked Mr. McDonough, especially because Republicans in recent years have been proposing deep cuts to the Medicare program.
Agreed Mr. Jacobs, “Trump may not want that to be the centerpiece of a reelection campaign.”
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Voters this year have told pollsters in no uncertain terms that health care is important to them. In particular, maintaining insurance protections for preexisting conditions is the top issue to many.
But the results of the midterm elections are likely to have a major impact on a broad array of other health issues that touch every single American. And how those issues are addressed will depend in large part on which party controls the U.S. House and Senate, governors’ mansions, and state legislatures around the country.
All politics is local, and no single race is likely to determine national or even state action. But some key contests can provide something of a barometer of what’s likely to happen – or not happen – over the next 2 years.
For example, keep an eye on Kansas. The razor-tight race for governor could determine whether the state expands Medicaid to all people with low incomes, as allowed under the Affordable Care Act. The legislature in that deep-red state passed a bill to accept expansion in 2017, but it could not override the veto of then-Gov. Sam Brownback. Of the candidates running for governor in 2018, Democrat Laura Kelly supports expansion, while Republican Kris Kobach does not.
Here are three big health issues that could be dramatically affected by Tuesday’s vote.
1. The Affordable Care Act
Protections for preexisting conditions are only a small part of the ACA. The law also made big changes to Medicare and Medicaid, employer-provided health plans, and the generic drug approval process, among other things.
Republicans ran hard on promises to get rid of the law in every election since it passed in 2010. But when the GOP finally got control of the House, the Senate, and the White House in 2017, Republicans found they could not reach agreement on how to “repeal and replace” the law.
This year has Democrats on the attack over the votes Republicans took on various proposals to remake the health law. Probably the most endangered Democrat in the Senate, Heidi Heitkamp of North Dakota, has hammered her Republican opponent, U.S. Rep. Kevin Cramer, over his votes in the House for the unsuccessful repeal-and-replace bills. Rep. Cramer said that despite his votes he supports protections for preexisting conditions, but he has not said what he would do or get behind that could have that effect.
Polls suggest Rep. Cramer has a healthy lead in that race, but if Sen. Heitkamp pulled off a surprise win, health care might well get some of the credit.
And in New Jersey, Rep. Tom MacArthur, the moderate Republican who wrote the language that got the GOP health bill passed in the House in 2017, is in a heated race with Democrat Andy Kim, who has never held elective office. The overriding issue in that race, too, is health care.
It is not just congressional action that has Republicans playing defense on the ACA. In February, 18 GOP attorneys general and 2 GOP governors filed a lawsuit seeking a judgment that the law is now unconstitutional because Congress in the 2017 tax bill repealed the penalty for not having insurance. Two of those attorneys general – Missouri’s Josh Hawley and West Virginia’s Patrick Morrisey – are running for the Senate. Both states overwhelmingly supported President Donald Trump in 2016.
The attorneys general are running against Democratic incumbents – Claire McCaskill of Missouri and Joe Manchin of West Virginia. And both Republicans are being hotly criticized by their opponents for their participation in the lawsuit.
Although Sen. Manchin appears to have taken a lead, the Hawley-McCaskill race is rated a toss-up by political analysts.
But in the end the fate of the ACA depends less on an individual race than on which party winds up in control of Congress.
“If Democrats take the House ... then any attempt at repeal-and-replace will be kaput,” said John McDonough, a former Democratic Senate aide who helped write the ACA and now teaches at the Harvard School of Public Health, Boston.
Conservative health care strategist Chris Jacobs, who worked for Republicans on Capitol Hill, said a new repeal-and-replace effort might not happen even if Republicans are successful Tuesday.
“Republicans, if they maintain the majority in the House, will have a margin of a half-dozen seats – if they are lucky,” he said. That likely would not allow the party to push through another controversial effort to change the law. Currently there are 42 more Republicans than Democrats in the House. Even so, the GOP barely got its health bill passed out of the House in 2017.
And political strategists say that, when the dust clears after voting, the numbers in the Senate may not be much different so change could be hard there too. Republicans, even with a small majority last year, could not pass a repeal bill there.
2. Medicaid expansion
The Supreme Court in 2012 made optional the ACA’s expansion of Medicaid to cover all low-income Americans up to 138% of the poverty line ($16,753 for an individual in 2018). Most states have now expanded, particularly since the federal government is paying the vast majority of the cost: 94% in 2018, gradually dropping to 90% in 2020.
Still, 17 states, all with GOP governors or state legislatures (or both), have yet to expand Medicaid.
Mr. McDonough is confident that’s about to change. “I’m wondering if we’re on the cusp of a Medicaid wave,” he said.
Four states – Idaho, Montana, Nebraska, and Utah – have Medicaid expansion questions on their ballots. All but Montana have yet to expand the program. Montana’s question would eliminate the 2019 sunset date included in its expansion in 2016. But it will be interesting to watch results because the measure has run into big-pocketed opposition: the tobacco industry. The initiative would increase taxes on cigarettes and other tobacco products to fund the state’s increased Medicaid costs.
In Idaho, the ballot measure is being embraced by a number of Republican leaders. GOP Gov. Butch Otter, who is retiring after three terms, endorsed it Oct. 30.
But the issue is in play in other states, too. Several nonexpansion states have close or closer-than-expected races for governor where the Democrat has made Medicaid expansion a priority.
In Florida, one of the largest states not to have expanded Medicaid, the Republican candidate for governor, former U.S. Rep. Ron DeSantis, opposes expansion. His Democratic opponent, Tallahassee Mayor Andrew Gillum, supports it.
In Georgia, the gubernatorial candidates, Democrat Stacey Abrams and Republican Brian Kemp, are also on opposite sides of the Medicaid expansion debate.
However, the legislatures in both states have opposed the expansion, and it’s not clear if they would be swayed by arguments from a new governor.
3. Medicare
Until recently, Republicans have remained relatively quiet about efforts to change the popular Medicare program for seniors and people with disabilities.
Their new talking point is that proposals to expand the program – such as the often-touted “Medicare-for-all,” which an increasing number of Democrats are embracing – could threaten the existing program.
“Medicare is at significant risk of being cut if Democrats take over the House,” Rep. Greg Gianforte (R-Mont.) told the Lee Montana Newspapers. “Medicare-for-all is Medicare for none. It will gut Medicare, end the VA [Department of Veterans Affairs] as we know it, and force Montana seniors to the back of the line.”
Gianforte’s Democratic opponent, Kathleen Williams, is proposing another idea popular with Democrats: allowing people aged 55 years and over to “buy into” Medicare coverage. That race, too, is very tight.
Meanwhile, back in Washington, congressional Republicans are more concerned with how Medicare and other large government social programs are threatening the budget.
“Sooner or later we are going to run out of other people’s money,” said Mr. Jacobs.
Senate Majority Leader Mitch McConnell (R-Ky.) suggested in an Oct. 16 interview with Bloomberg News that entitlement programs like Medicare are “the real driver of the debt by any objective standard,” but that bipartisan cooperation will be needed to address that problem
Republican Mr. Jacobs and Democrat Mr. McDonough think that’s unlikely any time soon.
“Why would Democrats give that up as an issue heading into 2020?” asked Mr. McDonough, especially because Republicans in recent years have been proposing deep cuts to the Medicare program.
Agreed Mr. Jacobs, “Trump may not want that to be the centerpiece of a reelection campaign.”
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Voters this year have told pollsters in no uncertain terms that health care is important to them. In particular, maintaining insurance protections for preexisting conditions is the top issue to many.
But the results of the midterm elections are likely to have a major impact on a broad array of other health issues that touch every single American. And how those issues are addressed will depend in large part on which party controls the U.S. House and Senate, governors’ mansions, and state legislatures around the country.
All politics is local, and no single race is likely to determine national or even state action. But some key contests can provide something of a barometer of what’s likely to happen – or not happen – over the next 2 years.
For example, keep an eye on Kansas. The razor-tight race for governor could determine whether the state expands Medicaid to all people with low incomes, as allowed under the Affordable Care Act. The legislature in that deep-red state passed a bill to accept expansion in 2017, but it could not override the veto of then-Gov. Sam Brownback. Of the candidates running for governor in 2018, Democrat Laura Kelly supports expansion, while Republican Kris Kobach does not.
Here are three big health issues that could be dramatically affected by Tuesday’s vote.
1. The Affordable Care Act
Protections for preexisting conditions are only a small part of the ACA. The law also made big changes to Medicare and Medicaid, employer-provided health plans, and the generic drug approval process, among other things.
Republicans ran hard on promises to get rid of the law in every election since it passed in 2010. But when the GOP finally got control of the House, the Senate, and the White House in 2017, Republicans found they could not reach agreement on how to “repeal and replace” the law.
This year has Democrats on the attack over the votes Republicans took on various proposals to remake the health law. Probably the most endangered Democrat in the Senate, Heidi Heitkamp of North Dakota, has hammered her Republican opponent, U.S. Rep. Kevin Cramer, over his votes in the House for the unsuccessful repeal-and-replace bills. Rep. Cramer said that despite his votes he supports protections for preexisting conditions, but he has not said what he would do or get behind that could have that effect.
Polls suggest Rep. Cramer has a healthy lead in that race, but if Sen. Heitkamp pulled off a surprise win, health care might well get some of the credit.
And in New Jersey, Rep. Tom MacArthur, the moderate Republican who wrote the language that got the GOP health bill passed in the House in 2017, is in a heated race with Democrat Andy Kim, who has never held elective office. The overriding issue in that race, too, is health care.
It is not just congressional action that has Republicans playing defense on the ACA. In February, 18 GOP attorneys general and 2 GOP governors filed a lawsuit seeking a judgment that the law is now unconstitutional because Congress in the 2017 tax bill repealed the penalty for not having insurance. Two of those attorneys general – Missouri’s Josh Hawley and West Virginia’s Patrick Morrisey – are running for the Senate. Both states overwhelmingly supported President Donald Trump in 2016.
The attorneys general are running against Democratic incumbents – Claire McCaskill of Missouri and Joe Manchin of West Virginia. And both Republicans are being hotly criticized by their opponents for their participation in the lawsuit.
Although Sen. Manchin appears to have taken a lead, the Hawley-McCaskill race is rated a toss-up by political analysts.
But in the end the fate of the ACA depends less on an individual race than on which party winds up in control of Congress.
“If Democrats take the House ... then any attempt at repeal-and-replace will be kaput,” said John McDonough, a former Democratic Senate aide who helped write the ACA and now teaches at the Harvard School of Public Health, Boston.
Conservative health care strategist Chris Jacobs, who worked for Republicans on Capitol Hill, said a new repeal-and-replace effort might not happen even if Republicans are successful Tuesday.
“Republicans, if they maintain the majority in the House, will have a margin of a half-dozen seats – if they are lucky,” he said. That likely would not allow the party to push through another controversial effort to change the law. Currently there are 42 more Republicans than Democrats in the House. Even so, the GOP barely got its health bill passed out of the House in 2017.
And political strategists say that, when the dust clears after voting, the numbers in the Senate may not be much different so change could be hard there too. Republicans, even with a small majority last year, could not pass a repeal bill there.
2. Medicaid expansion
The Supreme Court in 2012 made optional the ACA’s expansion of Medicaid to cover all low-income Americans up to 138% of the poverty line ($16,753 for an individual in 2018). Most states have now expanded, particularly since the federal government is paying the vast majority of the cost: 94% in 2018, gradually dropping to 90% in 2020.
Still, 17 states, all with GOP governors or state legislatures (or both), have yet to expand Medicaid.
Mr. McDonough is confident that’s about to change. “I’m wondering if we’re on the cusp of a Medicaid wave,” he said.
Four states – Idaho, Montana, Nebraska, and Utah – have Medicaid expansion questions on their ballots. All but Montana have yet to expand the program. Montana’s question would eliminate the 2019 sunset date included in its expansion in 2016. But it will be interesting to watch results because the measure has run into big-pocketed opposition: the tobacco industry. The initiative would increase taxes on cigarettes and other tobacco products to fund the state’s increased Medicaid costs.
In Idaho, the ballot measure is being embraced by a number of Republican leaders. GOP Gov. Butch Otter, who is retiring after three terms, endorsed it Oct. 30.
But the issue is in play in other states, too. Several nonexpansion states have close or closer-than-expected races for governor where the Democrat has made Medicaid expansion a priority.
In Florida, one of the largest states not to have expanded Medicaid, the Republican candidate for governor, former U.S. Rep. Ron DeSantis, opposes expansion. His Democratic opponent, Tallahassee Mayor Andrew Gillum, supports it.
In Georgia, the gubernatorial candidates, Democrat Stacey Abrams and Republican Brian Kemp, are also on opposite sides of the Medicaid expansion debate.
However, the legislatures in both states have opposed the expansion, and it’s not clear if they would be swayed by arguments from a new governor.
3. Medicare
Until recently, Republicans have remained relatively quiet about efforts to change the popular Medicare program for seniors and people with disabilities.
Their new talking point is that proposals to expand the program – such as the often-touted “Medicare-for-all,” which an increasing number of Democrats are embracing – could threaten the existing program.
“Medicare is at significant risk of being cut if Democrats take over the House,” Rep. Greg Gianforte (R-Mont.) told the Lee Montana Newspapers. “Medicare-for-all is Medicare for none. It will gut Medicare, end the VA [Department of Veterans Affairs] as we know it, and force Montana seniors to the back of the line.”
Gianforte’s Democratic opponent, Kathleen Williams, is proposing another idea popular with Democrats: allowing people aged 55 years and over to “buy into” Medicare coverage. That race, too, is very tight.
Meanwhile, back in Washington, congressional Republicans are more concerned with how Medicare and other large government social programs are threatening the budget.
“Sooner or later we are going to run out of other people’s money,” said Mr. Jacobs.
Senate Majority Leader Mitch McConnell (R-Ky.) suggested in an Oct. 16 interview with Bloomberg News that entitlement programs like Medicare are “the real driver of the debt by any objective standard,” but that bipartisan cooperation will be needed to address that problem
Republican Mr. Jacobs and Democrat Mr. McDonough think that’s unlikely any time soon.
“Why would Democrats give that up as an issue heading into 2020?” asked Mr. McDonough, especially because Republicans in recent years have been proposing deep cuts to the Medicare program.
Agreed Mr. Jacobs, “Trump may not want that to be the centerpiece of a reelection campaign.”
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Tuition-free med school touches off multimillion-dollar debate
New York University’s School of Medicine is learning that no good deed goes unpunished.
The highly ranked medical school announced with much fanfare Aug. 16 that it is raising $600 million from private donors to eliminate tuition for all its students – even providing refunds to those currently enrolled. Before the announcement, annual tuition was $55,018.
NYU leaders said the move will help address the increasing problem of student debt among young doctors, which many educators argue pushes students to enter higher-paying specialties instead of primary care, or deters them from becoming doctors in the first place.
“A population as diverse as ours is best served by doctors from all walks of life, we believe, and aspiring physicians and surgeons should not be prevented from pursuing a career in medicine because of the prospect of overwhelming financial debt,” Dr. Robert Grossman, the dean of the medical school and CEO of NYU Langone Health, said in a statement. NYU declined a request to elaborate further on its plans.
“As I start rank ordering the various charities I want to give to, the people who can pay for medical school in cash aren’t at the top of my list,” said Craig Garthwaite, a health economist at Northwestern University’s Kellogg School of Management.
“If you had to find some cause to put tons of money behind, this strikes me as an odd one,” said Dr. Aaron Carroll, a pediatrician and researcher at Indiana University.
Still, medical education debt is a big issue in health care. According to the Association of American Medical Colleges, which represents U.S. medical schools and academic health centers, 75 percent of graduating physicians had student loan debt as they launched their careers, with a median tally of $192,000 in 2017. Nearly half owed more than $200,000.
But it is less clear how much of an impact that debt has on students’ choice of medical specialty. The AAMC’s data suggests debt does not play as big a role in specialty selection as some analysts claim.
If debt were a huge factor, one would expect that doctors who owed the most would choose the highest-paying specialties. But that’s not the case.
“Debt doesn’t vary much across the specialties,” said Julie Fresne, AAMC’s director of student financial services and debt management.
Garthwaite agrees. He said surveys in which young doctors claim debt as a reason for choosing a more lucrative specialty should be viewed with suspicion. “No one [who chooses a higher-paying job] says they did it because they want two Teslas,” he said. “They say they have all this debt.”
Carroll questioned how much difference even $200,000 in student debt makes to people who, at the lowest end of the medical spectrum, still stand to make six figures a year. “Doctors in general do just fine,” he said. “The idea we should pity physicians or worry about them strikes me as odd.”
Choice of specialty is also influenced by more than money. Some specialties may bring less demanding lifestyles than primary care or more prestige. Carroll said his surgeon father was not impressed when he opted for pediatrics, calling it a “garbageman” specialty.
There is also an array of government programs that help students afford medical school or forgive their loans, although usually in exchange for agreeing to serve for several years either in the military or in a medically underserved location. The federal National Health Service Corps, for example, provides scholarships and loan repayments to medical professionals who agree to work in mostly rural or inner-city areas with a shortage of medical professionals. And the Department of Education oversees the Public Service Loan Forgiveness program, which cancels outstanding loan balances after 10 years for those who work for nonprofit employers.
Medical schools themselves are addressing the student debt problem. Many – including NYU – have created programs that let students finish medical school in three years rather than four, which reduces the cost by 25 percent. And the Cleveland Clinic, together with Case Western Reserve University, has a tuition-free medical school aimed at training future medical researchers that takes five years but grants graduates who hold both a doctor of medicine title and a special research credential or master’s degree.
This latest move by NYU, however, is part of a continuing race among top-tier medical schools to attract the best students – and possibly improve their national rankings.
In 2014, UCLA announced it would provide merit-based scholarships covering the entire cost of medical education (including not just tuition, like NYU, but also living expenses) to 20 percent of its students. Columbia University announced a similar plan earlier this year, although unlike NYU and UCLA, Columbia’s program is based on students’ financial need.
The programs are funded, in whole or in part, by large donors whose names brand each medical school – entertainment mogul David Geffen at UCLA, former Merck CEO P. Roy Vagelos at Columbia, and Home Depot co-founder Kenneth Langone at NYU.
Economist Garthwaite said it is all well and good if top medical schools want to compete for top students by offering discounts. But if their goal is to encourage more students to enter primary care or to steer more people from lower-income families into medicine, giving free tuition to all “is not the most target-efficient way to reach that goal.”
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
New York University’s School of Medicine is learning that no good deed goes unpunished.
The highly ranked medical school announced with much fanfare Aug. 16 that it is raising $600 million from private donors to eliminate tuition for all its students – even providing refunds to those currently enrolled. Before the announcement, annual tuition was $55,018.
NYU leaders said the move will help address the increasing problem of student debt among young doctors, which many educators argue pushes students to enter higher-paying specialties instead of primary care, or deters them from becoming doctors in the first place.
“A population as diverse as ours is best served by doctors from all walks of life, we believe, and aspiring physicians and surgeons should not be prevented from pursuing a career in medicine because of the prospect of overwhelming financial debt,” Dr. Robert Grossman, the dean of the medical school and CEO of NYU Langone Health, said in a statement. NYU declined a request to elaborate further on its plans.
“As I start rank ordering the various charities I want to give to, the people who can pay for medical school in cash aren’t at the top of my list,” said Craig Garthwaite, a health economist at Northwestern University’s Kellogg School of Management.
“If you had to find some cause to put tons of money behind, this strikes me as an odd one,” said Dr. Aaron Carroll, a pediatrician and researcher at Indiana University.
Still, medical education debt is a big issue in health care. According to the Association of American Medical Colleges, which represents U.S. medical schools and academic health centers, 75 percent of graduating physicians had student loan debt as they launched their careers, with a median tally of $192,000 in 2017. Nearly half owed more than $200,000.
But it is less clear how much of an impact that debt has on students’ choice of medical specialty. The AAMC’s data suggests debt does not play as big a role in specialty selection as some analysts claim.
If debt were a huge factor, one would expect that doctors who owed the most would choose the highest-paying specialties. But that’s not the case.
“Debt doesn’t vary much across the specialties,” said Julie Fresne, AAMC’s director of student financial services and debt management.
Garthwaite agrees. He said surveys in which young doctors claim debt as a reason for choosing a more lucrative specialty should be viewed with suspicion. “No one [who chooses a higher-paying job] says they did it because they want two Teslas,” he said. “They say they have all this debt.”
Carroll questioned how much difference even $200,000 in student debt makes to people who, at the lowest end of the medical spectrum, still stand to make six figures a year. “Doctors in general do just fine,” he said. “The idea we should pity physicians or worry about them strikes me as odd.”
Choice of specialty is also influenced by more than money. Some specialties may bring less demanding lifestyles than primary care or more prestige. Carroll said his surgeon father was not impressed when he opted for pediatrics, calling it a “garbageman” specialty.
There is also an array of government programs that help students afford medical school or forgive their loans, although usually in exchange for agreeing to serve for several years either in the military or in a medically underserved location. The federal National Health Service Corps, for example, provides scholarships and loan repayments to medical professionals who agree to work in mostly rural or inner-city areas with a shortage of medical professionals. And the Department of Education oversees the Public Service Loan Forgiveness program, which cancels outstanding loan balances after 10 years for those who work for nonprofit employers.
Medical schools themselves are addressing the student debt problem. Many – including NYU – have created programs that let students finish medical school in three years rather than four, which reduces the cost by 25 percent. And the Cleveland Clinic, together with Case Western Reserve University, has a tuition-free medical school aimed at training future medical researchers that takes five years but grants graduates who hold both a doctor of medicine title and a special research credential or master’s degree.
This latest move by NYU, however, is part of a continuing race among top-tier medical schools to attract the best students – and possibly improve their national rankings.
In 2014, UCLA announced it would provide merit-based scholarships covering the entire cost of medical education (including not just tuition, like NYU, but also living expenses) to 20 percent of its students. Columbia University announced a similar plan earlier this year, although unlike NYU and UCLA, Columbia’s program is based on students’ financial need.
The programs are funded, in whole or in part, by large donors whose names brand each medical school – entertainment mogul David Geffen at UCLA, former Merck CEO P. Roy Vagelos at Columbia, and Home Depot co-founder Kenneth Langone at NYU.
Economist Garthwaite said it is all well and good if top medical schools want to compete for top students by offering discounts. But if their goal is to encourage more students to enter primary care or to steer more people from lower-income families into medicine, giving free tuition to all “is not the most target-efficient way to reach that goal.”
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
New York University’s School of Medicine is learning that no good deed goes unpunished.
The highly ranked medical school announced with much fanfare Aug. 16 that it is raising $600 million from private donors to eliminate tuition for all its students – even providing refunds to those currently enrolled. Before the announcement, annual tuition was $55,018.
NYU leaders said the move will help address the increasing problem of student debt among young doctors, which many educators argue pushes students to enter higher-paying specialties instead of primary care, or deters them from becoming doctors in the first place.
“A population as diverse as ours is best served by doctors from all walks of life, we believe, and aspiring physicians and surgeons should not be prevented from pursuing a career in medicine because of the prospect of overwhelming financial debt,” Dr. Robert Grossman, the dean of the medical school and CEO of NYU Langone Health, said in a statement. NYU declined a request to elaborate further on its plans.
“As I start rank ordering the various charities I want to give to, the people who can pay for medical school in cash aren’t at the top of my list,” said Craig Garthwaite, a health economist at Northwestern University’s Kellogg School of Management.
“If you had to find some cause to put tons of money behind, this strikes me as an odd one,” said Dr. Aaron Carroll, a pediatrician and researcher at Indiana University.
Still, medical education debt is a big issue in health care. According to the Association of American Medical Colleges, which represents U.S. medical schools and academic health centers, 75 percent of graduating physicians had student loan debt as they launched their careers, with a median tally of $192,000 in 2017. Nearly half owed more than $200,000.
But it is less clear how much of an impact that debt has on students’ choice of medical specialty. The AAMC’s data suggests debt does not play as big a role in specialty selection as some analysts claim.
If debt were a huge factor, one would expect that doctors who owed the most would choose the highest-paying specialties. But that’s not the case.
“Debt doesn’t vary much across the specialties,” said Julie Fresne, AAMC’s director of student financial services and debt management.
Garthwaite agrees. He said surveys in which young doctors claim debt as a reason for choosing a more lucrative specialty should be viewed with suspicion. “No one [who chooses a higher-paying job] says they did it because they want two Teslas,” he said. “They say they have all this debt.”
Carroll questioned how much difference even $200,000 in student debt makes to people who, at the lowest end of the medical spectrum, still stand to make six figures a year. “Doctors in general do just fine,” he said. “The idea we should pity physicians or worry about them strikes me as odd.”
Choice of specialty is also influenced by more than money. Some specialties may bring less demanding lifestyles than primary care or more prestige. Carroll said his surgeon father was not impressed when he opted for pediatrics, calling it a “garbageman” specialty.
There is also an array of government programs that help students afford medical school or forgive their loans, although usually in exchange for agreeing to serve for several years either in the military or in a medically underserved location. The federal National Health Service Corps, for example, provides scholarships and loan repayments to medical professionals who agree to work in mostly rural or inner-city areas with a shortage of medical professionals. And the Department of Education oversees the Public Service Loan Forgiveness program, which cancels outstanding loan balances after 10 years for those who work for nonprofit employers.
Medical schools themselves are addressing the student debt problem. Many – including NYU – have created programs that let students finish medical school in three years rather than four, which reduces the cost by 25 percent. And the Cleveland Clinic, together with Case Western Reserve University, has a tuition-free medical school aimed at training future medical researchers that takes five years but grants graduates who hold both a doctor of medicine title and a special research credential or master’s degree.
This latest move by NYU, however, is part of a continuing race among top-tier medical schools to attract the best students – and possibly improve their national rankings.
In 2014, UCLA announced it would provide merit-based scholarships covering the entire cost of medical education (including not just tuition, like NYU, but also living expenses) to 20 percent of its students. Columbia University announced a similar plan earlier this year, although unlike NYU and UCLA, Columbia’s program is based on students’ financial need.
The programs are funded, in whole or in part, by large donors whose names brand each medical school – entertainment mogul David Geffen at UCLA, former Merck CEO P. Roy Vagelos at Columbia, and Home Depot co-founder Kenneth Langone at NYU.
Economist Garthwaite said it is all well and good if top medical schools want to compete for top students by offering discounts. But if their goal is to encourage more students to enter primary care or to steer more people from lower-income families into medicine, giving free tuition to all “is not the most target-efficient way to reach that goal.”
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
If high court reverses Roe v. Wade, 22 states poised to ban abortion
That’s the question now that President Donald Trump has chosen Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy.
Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws are already in place that render abortion more or less available, largely depending on individual states’ political leanings.
“We think there are 22 states likely to ban abortion without Roe,” because of a combination of factors including existing laws and regulation on the books and the positions of the governor and state legislature, said Amy Myrick, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.
“The threat level is very high now,” Ms. Myrick said.
Judge Kavanaugh never opined on Roe v. Wade directly during his tenure on the U.S. District Court in Washington. In his 2006 confirmation hearing for that position, though, he said he would follow Roe v. Wade as a “binding precedent” of the Supreme Court – which lower-court judges are required to do.
Abortion opponents are buoyed by the pick.
“Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said in a statement. She spearheaded support for Trump in his presidential campaign after he promised to appoint to the Supreme Court only justices who would overturn Roe v. Wade.
Justice Kennedy, by contrast, was a swing vote on abortion issues. He frequently sided with conservatives to uphold abortion restrictions. However, in key cases in 1992 and 2016, he sided with liberals to uphold Roe’s core finding that the right to abortion is part of a right to privacy that is embedded within the U.S. Constitution.
Even now, with Roe v. Wade’s protections in place, a woman’s ability to access abortion is heavily dependent on where she lives.
According to an analysis by the Guttmacher Institute, a reproductive-rights think tank, 19 states adopted 63 new restrictions on abortion rights and access. At the same time, 21 states adopted 58 measures last year intended to expand access to women’s reproductive health.
Since 2011, states have enacted nearly 1,200 separate abortion restrictions, according to Guttmacher, making these types of laws far more common.
As of now, four states – Louisiana, Mississippi and North and South Dakota – have what are known as abortion “trigger laws.” Those laws – passed long after Roe was handed down – would make abortion illegal if and when the Supreme Court were to say Roe is no more.
“They are designed to make abortion illegal immediately,” said Ms. Myrick.
Another dozen or so states still have abortion bans on the books that predated Roe v. Wade.
Some have been formally blocked by the courts but not repealed. Those bans could, at least in theory, be reinstated, although “someone would have to go into court and ask to lift that injunction,” said Ms. Myrick.
States could simply begin enforcing other bans that were never formally blocked, like one in Alabama that makes abortion providers subject to fines and up to a year in jail.
At the same time, Ms. Myrick said, “there are 20 states where abortion would probably remain safe and legal.”
The path to the high court
Several major challenges to state abortion laws are already in the judicial pipeline. One of these will have to get to the Supreme Court to enable a majority to overturn Roe v. Wade.
“It’s not a question of if, it’s a question of what or when,” said Sarah Lipton-Lubet, vice president for reproductive health and rights at the National Partnership for Women & Families.
The cases fall into three major categories.
The first – and most likely type to result in the court taking a broad look at Roe v. Wade – are “gestational” bans that seek to restrict abortion at a certain point in pregnancy, said Ms. Lipton-Lubet.
Mississippi has a 15-week ban, currently being challenged in federal court; Louisiana enacted a similar ban, but it would take effect only if Mississippi’s law is upheld. Iowa earlier this spring passed a 6-week ban, although that is being challenged in state court under the Iowa Constitution.
The second category involves regulations on abortion providers.
One pending case, for instance, involves an Arkansas law that would effectively ban medication abortions. Finally, there are bans on specific procedures, including several in Texas, Arkansas, and Alabama that would outlaw “dilation and evacuation” abortions, which are the most common type used in the second trimester of pregnancy.
Ms. Myrick and Ms. Lipton-Lubet agree that there is no way to predict which abortion case is likely to reach the high court first.
The case that’s actually closest to the Supreme Court, noted Ms. Myrick, is a challenge to an Indiana law that would outlaw abortion if the woman is seeking it for sex selection or because the fetus could be disabled. A federal appeals court found that law unconstitutional in April.
Many analysts also agree that even with the court’s likely philosophical shift, Roe v. Wade might not actually be overturned at all.
Instead, said Ms. Lipton-Lubet, a more conservative court could “just hollow it out” by allowing restrictive state laws to stand.
“The court cares about things like its own legitimacy,” said Ms. Myrick, “and how often a precedent has been upheld in the past.”
Given that Roe’s central finding – that the decision to have an abortion falls under the constitutional right to privacy – has been upheld three times, even an antiabortion court might be loath to overrule it in its entirety.
KHN’s coverage of women’s health care issues is supported in part by The David and Lucile Packard Foundation. Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
That’s the question now that President Donald Trump has chosen Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy.
Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws are already in place that render abortion more or less available, largely depending on individual states’ political leanings.
“We think there are 22 states likely to ban abortion without Roe,” because of a combination of factors including existing laws and regulation on the books and the positions of the governor and state legislature, said Amy Myrick, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.
“The threat level is very high now,” Ms. Myrick said.
Judge Kavanaugh never opined on Roe v. Wade directly during his tenure on the U.S. District Court in Washington. In his 2006 confirmation hearing for that position, though, he said he would follow Roe v. Wade as a “binding precedent” of the Supreme Court – which lower-court judges are required to do.
Abortion opponents are buoyed by the pick.
“Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said in a statement. She spearheaded support for Trump in his presidential campaign after he promised to appoint to the Supreme Court only justices who would overturn Roe v. Wade.
Justice Kennedy, by contrast, was a swing vote on abortion issues. He frequently sided with conservatives to uphold abortion restrictions. However, in key cases in 1992 and 2016, he sided with liberals to uphold Roe’s core finding that the right to abortion is part of a right to privacy that is embedded within the U.S. Constitution.
Even now, with Roe v. Wade’s protections in place, a woman’s ability to access abortion is heavily dependent on where she lives.
According to an analysis by the Guttmacher Institute, a reproductive-rights think tank, 19 states adopted 63 new restrictions on abortion rights and access. At the same time, 21 states adopted 58 measures last year intended to expand access to women’s reproductive health.
Since 2011, states have enacted nearly 1,200 separate abortion restrictions, according to Guttmacher, making these types of laws far more common.
As of now, four states – Louisiana, Mississippi and North and South Dakota – have what are known as abortion “trigger laws.” Those laws – passed long after Roe was handed down – would make abortion illegal if and when the Supreme Court were to say Roe is no more.
“They are designed to make abortion illegal immediately,” said Ms. Myrick.
Another dozen or so states still have abortion bans on the books that predated Roe v. Wade.
Some have been formally blocked by the courts but not repealed. Those bans could, at least in theory, be reinstated, although “someone would have to go into court and ask to lift that injunction,” said Ms. Myrick.
States could simply begin enforcing other bans that were never formally blocked, like one in Alabama that makes abortion providers subject to fines and up to a year in jail.
At the same time, Ms. Myrick said, “there are 20 states where abortion would probably remain safe and legal.”
The path to the high court
Several major challenges to state abortion laws are already in the judicial pipeline. One of these will have to get to the Supreme Court to enable a majority to overturn Roe v. Wade.
“It’s not a question of if, it’s a question of what or when,” said Sarah Lipton-Lubet, vice president for reproductive health and rights at the National Partnership for Women & Families.
The cases fall into three major categories.
The first – and most likely type to result in the court taking a broad look at Roe v. Wade – are “gestational” bans that seek to restrict abortion at a certain point in pregnancy, said Ms. Lipton-Lubet.
Mississippi has a 15-week ban, currently being challenged in federal court; Louisiana enacted a similar ban, but it would take effect only if Mississippi’s law is upheld. Iowa earlier this spring passed a 6-week ban, although that is being challenged in state court under the Iowa Constitution.
The second category involves regulations on abortion providers.
One pending case, for instance, involves an Arkansas law that would effectively ban medication abortions. Finally, there are bans on specific procedures, including several in Texas, Arkansas, and Alabama that would outlaw “dilation and evacuation” abortions, which are the most common type used in the second trimester of pregnancy.
Ms. Myrick and Ms. Lipton-Lubet agree that there is no way to predict which abortion case is likely to reach the high court first.
The case that’s actually closest to the Supreme Court, noted Ms. Myrick, is a challenge to an Indiana law that would outlaw abortion if the woman is seeking it for sex selection or because the fetus could be disabled. A federal appeals court found that law unconstitutional in April.
Many analysts also agree that even with the court’s likely philosophical shift, Roe v. Wade might not actually be overturned at all.
Instead, said Ms. Lipton-Lubet, a more conservative court could “just hollow it out” by allowing restrictive state laws to stand.
“The court cares about things like its own legitimacy,” said Ms. Myrick, “and how often a precedent has been upheld in the past.”
Given that Roe’s central finding – that the decision to have an abortion falls under the constitutional right to privacy – has been upheld three times, even an antiabortion court might be loath to overrule it in its entirety.
KHN’s coverage of women’s health care issues is supported in part by The David and Lucile Packard Foundation. Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
That’s the question now that President Donald Trump has chosen Judge Brett Kavanaugh as his nominee to replace retiring Supreme Court Justice Anthony Kennedy.
Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws are already in place that render abortion more or less available, largely depending on individual states’ political leanings.
“We think there are 22 states likely to ban abortion without Roe,” because of a combination of factors including existing laws and regulation on the books and the positions of the governor and state legislature, said Amy Myrick, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.
“The threat level is very high now,” Ms. Myrick said.
Judge Kavanaugh never opined on Roe v. Wade directly during his tenure on the U.S. District Court in Washington. In his 2006 confirmation hearing for that position, though, he said he would follow Roe v. Wade as a “binding precedent” of the Supreme Court – which lower-court judges are required to do.
Abortion opponents are buoyed by the pick.
“Judge Kavanaugh is an experienced, principled jurist with a strong record of protecting life and constitutional rights,” Marjorie Dannenfelser, president of the Susan B. Anthony List, said in a statement. She spearheaded support for Trump in his presidential campaign after he promised to appoint to the Supreme Court only justices who would overturn Roe v. Wade.
Justice Kennedy, by contrast, was a swing vote on abortion issues. He frequently sided with conservatives to uphold abortion restrictions. However, in key cases in 1992 and 2016, he sided with liberals to uphold Roe’s core finding that the right to abortion is part of a right to privacy that is embedded within the U.S. Constitution.
Even now, with Roe v. Wade’s protections in place, a woman’s ability to access abortion is heavily dependent on where she lives.
According to an analysis by the Guttmacher Institute, a reproductive-rights think tank, 19 states adopted 63 new restrictions on abortion rights and access. At the same time, 21 states adopted 58 measures last year intended to expand access to women’s reproductive health.
Since 2011, states have enacted nearly 1,200 separate abortion restrictions, according to Guttmacher, making these types of laws far more common.
As of now, four states – Louisiana, Mississippi and North and South Dakota – have what are known as abortion “trigger laws.” Those laws – passed long after Roe was handed down – would make abortion illegal if and when the Supreme Court were to say Roe is no more.
“They are designed to make abortion illegal immediately,” said Ms. Myrick.
Another dozen or so states still have abortion bans on the books that predated Roe v. Wade.
Some have been formally blocked by the courts but not repealed. Those bans could, at least in theory, be reinstated, although “someone would have to go into court and ask to lift that injunction,” said Ms. Myrick.
States could simply begin enforcing other bans that were never formally blocked, like one in Alabama that makes abortion providers subject to fines and up to a year in jail.
At the same time, Ms. Myrick said, “there are 20 states where abortion would probably remain safe and legal.”
The path to the high court
Several major challenges to state abortion laws are already in the judicial pipeline. One of these will have to get to the Supreme Court to enable a majority to overturn Roe v. Wade.
“It’s not a question of if, it’s a question of what or when,” said Sarah Lipton-Lubet, vice president for reproductive health and rights at the National Partnership for Women & Families.
The cases fall into three major categories.
The first – and most likely type to result in the court taking a broad look at Roe v. Wade – are “gestational” bans that seek to restrict abortion at a certain point in pregnancy, said Ms. Lipton-Lubet.
Mississippi has a 15-week ban, currently being challenged in federal court; Louisiana enacted a similar ban, but it would take effect only if Mississippi’s law is upheld. Iowa earlier this spring passed a 6-week ban, although that is being challenged in state court under the Iowa Constitution.
The second category involves regulations on abortion providers.
One pending case, for instance, involves an Arkansas law that would effectively ban medication abortions. Finally, there are bans on specific procedures, including several in Texas, Arkansas, and Alabama that would outlaw “dilation and evacuation” abortions, which are the most common type used in the second trimester of pregnancy.
Ms. Myrick and Ms. Lipton-Lubet agree that there is no way to predict which abortion case is likely to reach the high court first.
The case that’s actually closest to the Supreme Court, noted Ms. Myrick, is a challenge to an Indiana law that would outlaw abortion if the woman is seeking it for sex selection or because the fetus could be disabled. A federal appeals court found that law unconstitutional in April.
Many analysts also agree that even with the court’s likely philosophical shift, Roe v. Wade might not actually be overturned at all.
Instead, said Ms. Lipton-Lubet, a more conservative court could “just hollow it out” by allowing restrictive state laws to stand.
“The court cares about things like its own legitimacy,” said Ms. Myrick, “and how often a precedent has been upheld in the past.”
Given that Roe’s central finding – that the decision to have an abortion falls under the constitutional right to privacy – has been upheld three times, even an antiabortion court might be loath to overrule it in its entirety.
KHN’s coverage of women’s health care issues is supported in part by The David and Lucile Packard Foundation. Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
HHS to allow insurers’ workaround on 2019 prices
Federal officials will not block insurance companies from again using a workaround to cushion a steep rise in health premiums caused by President Donald Trump’s cancellation of a program established under the Affordable Care Act, Health and Human Services Secretary Alex Azar announced June 6.
The technique – called “silver loading” because it pushed price increases onto the silver-level plans in the ACA marketplaces – was used by many states for 2018 policies. But federal officials had hinted they might bar the practice next year.
At a hearing June 6 before the House Education and Workforce Committee, Mr. Azar said stopping this practice “would require regulations, which simply couldn’t be done in time for the 2019 plan period.”
States moved to silver loading after the president in October cut off federal reimbursement for so-called cost-sharing reduction subsidies that the ACA guaranteed to insurance companies. Those payments offset the cost of discounts that insurers are required by the law to provide to some low-income people to help cover their deductibles and other out-of-pocket costs.
States scrambled to let insurers raise rates so they would stay in the market. And many let them use this technique to recoup the lost funding by adding to the premium costs of midlevel silver plans in the health exchanges.
Because the formula for federal premium subsidies offered to people who purchase through the marketplaces is based on the prices of those silver plans, as those premiums rose so did the subsidies to help people afford them. That meant the federal government ended up paying much of the increase in prices.
At the committee hearing June 6, under questioning from Rep. Joe Courtney (D-Conn.), Mr. Azar declined to say if the department was considering a future ban.
“It’s not an easy question,” Mr. Azar said.
The fact that the federal government ended up effectively making the payments aggravated many Republicans, and there have been rumors over the past several months that HHS might require the premium increases to be applied across all plans, boosting costs for all buyers in the individual market.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, told reporters in April that the department was examining the possibility.
Apparently that will not happen, at least not for plan year 2019.
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Federal officials will not block insurance companies from again using a workaround to cushion a steep rise in health premiums caused by President Donald Trump’s cancellation of a program established under the Affordable Care Act, Health and Human Services Secretary Alex Azar announced June 6.
The technique – called “silver loading” because it pushed price increases onto the silver-level plans in the ACA marketplaces – was used by many states for 2018 policies. But federal officials had hinted they might bar the practice next year.
At a hearing June 6 before the House Education and Workforce Committee, Mr. Azar said stopping this practice “would require regulations, which simply couldn’t be done in time for the 2019 plan period.”
States moved to silver loading after the president in October cut off federal reimbursement for so-called cost-sharing reduction subsidies that the ACA guaranteed to insurance companies. Those payments offset the cost of discounts that insurers are required by the law to provide to some low-income people to help cover their deductibles and other out-of-pocket costs.
States scrambled to let insurers raise rates so they would stay in the market. And many let them use this technique to recoup the lost funding by adding to the premium costs of midlevel silver plans in the health exchanges.
Because the formula for federal premium subsidies offered to people who purchase through the marketplaces is based on the prices of those silver plans, as those premiums rose so did the subsidies to help people afford them. That meant the federal government ended up paying much of the increase in prices.
At the committee hearing June 6, under questioning from Rep. Joe Courtney (D-Conn.), Mr. Azar declined to say if the department was considering a future ban.
“It’s not an easy question,” Mr. Azar said.
The fact that the federal government ended up effectively making the payments aggravated many Republicans, and there have been rumors over the past several months that HHS might require the premium increases to be applied across all plans, boosting costs for all buyers in the individual market.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, told reporters in April that the department was examining the possibility.
Apparently that will not happen, at least not for plan year 2019.
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Federal officials will not block insurance companies from again using a workaround to cushion a steep rise in health premiums caused by President Donald Trump’s cancellation of a program established under the Affordable Care Act, Health and Human Services Secretary Alex Azar announced June 6.
The technique – called “silver loading” because it pushed price increases onto the silver-level plans in the ACA marketplaces – was used by many states for 2018 policies. But federal officials had hinted they might bar the practice next year.
At a hearing June 6 before the House Education and Workforce Committee, Mr. Azar said stopping this practice “would require regulations, which simply couldn’t be done in time for the 2019 plan period.”
States moved to silver loading after the president in October cut off federal reimbursement for so-called cost-sharing reduction subsidies that the ACA guaranteed to insurance companies. Those payments offset the cost of discounts that insurers are required by the law to provide to some low-income people to help cover their deductibles and other out-of-pocket costs.
States scrambled to let insurers raise rates so they would stay in the market. And many let them use this technique to recoup the lost funding by adding to the premium costs of midlevel silver plans in the health exchanges.
Because the formula for federal premium subsidies offered to people who purchase through the marketplaces is based on the prices of those silver plans, as those premiums rose so did the subsidies to help people afford them. That meant the federal government ended up paying much of the increase in prices.
At the committee hearing June 6, under questioning from Rep. Joe Courtney (D-Conn.), Mr. Azar declined to say if the department was considering a future ban.
“It’s not an easy question,” Mr. Azar said.
The fact that the federal government ended up effectively making the payments aggravated many Republicans, and there have been rumors over the past several months that HHS might require the premium increases to be applied across all plans, boosting costs for all buyers in the individual market.
Seema Verma, the administrator of the Centers for Medicare & Medicaid Services, told reporters in April that the department was examining the possibility.
Apparently that will not happen, at least not for plan year 2019.
Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
Ear to the door: Five things being weighed in secret health bill also weigh it down
Anyone following the debate over the “repeal and replace” of the Affordable Care Act knows that the 13 Republican senators writing the bill are meeting behind closed doors.
While Senate Majority Leader Mitch McConnell (R-Ky.) continues to push for a vote before the July 4 Senate recess, Washington’s favorite parlor game has become guessing what is, or will be, in the Senate bill.
Spoiler: No one knows what the final Senate bill will look like – not even those writing it.
“It’s an iterative process,” Senate Majority Whip John Cornyn (R-Texas) told Politico, adding that senators in the room are sending options to the Congressional Budget Office to try to figure out, in general, how much they would cost. Those conversations between senators and the CBO – common for lawmakers working on major, complex pieces of legislation – sometimes prompt members to press through and other times to change course.
Although specifics, to the extent there are any, have largely stayed secret, some of the policies under consideration have slipped out, and pressure points of the debate are fairly clear. Anything can happen, but here’s what we know so far:
1. Medicaid expansion
The Republicans are determined to roll back the expansion of Medicaid under the Affordable Care Act. The question is, How to do it? The ACA called for an expansion of the Medicaid program for those with low incomes to everyone who earns less than 133% of poverty (around $16,000 a year for an individual), with the federal government footing much of the bill. The Supreme Court ruled in 2012 that the expansion was optional for states, but 31 have done so, providing new coverage to an estimated 14 million people.
The Republican bill passed by the House on May 4 would phase out the federal funding for those made eligible by the ACA over 2 years, beginning in 2020. But, Republican moderates in the Senate want a much slower end to the additional federal aid. Several have suggested that they could accept a 7-year phaseout.
Keeping the federal expansion money flowing that long, however, would cut into the bill’s budget savings. That matters: In order to protect the Senate’s ability to pass the bill under budget rules that require only a simple majority rather than 60 votes, the bill’s savings must at least match those of the House version. Any extra money spent on Medicaid expansion would have to be cut elsewhere.
2. Medicaid caps
A related issue is whether and at what level to cap federal Medicaid spending. Medicaid currently covers more than 70 million low-income people. Medicaid covers half of all births and half of the nation’s bill for long-term care, including nursing home stays. Right now, the federal government matches whatever states spend at least 50-50 and provides more matching funds for less wealthy states.
The House bill would, for the first time, cap the amount the federal government provides to states for their Medicaid programs. The CBO estimated that the caps would put more of the financial burden for the program on states, which would respond by a combination of cutting payments to health care providers like doctors and hospitals, eliminating benefits for patients, and restricting eligibility.
The Medicaid cap may or may not be included in the Senate bill, depending on whom you ask. However, sources with direct knowledge of the negotiations say the real sticking point is not whether or not to impose a cap – they want to do that. The hurdles are how to be fair to states that get less federal money and how fast the caps should rise.
Again, if the Senate proposal is more generous than the House’s version, it will be harder to meet the bill’s required budget targets.
3. Restrictions on abortion coverage
The senators are actively considering two measures that would limit funding for abortions, though it is not clear if either would be allowed to remain in the bill according to the Senate’s rules. The Senate Parliamentarian, who must review the bill after the senators complete it but before it comes to the floor, will decide.
The House-passed bill would ban the use of federal tax credits to purchase private coverage that includes abortion as a benefit. This is a key demand for a large portion of the Republican base. However, the Senate version of the bill must abide by strict rules that limit its content to provisions that directly impact the federal budget. In the past, abortion language in budget bills has been ruled out of order.
4. Reading between the lines
A related issue is whether House language to temporarily bar Planned Parenthood from participating in the Medicaid program will be allowed in the Senate.
While the Parliamentarian allowed identical language defunding Planned Parenthood to remain in a similar budget bill in 2015, it was not clear at the time that Planned Parenthood would have been the only provider affected by the language. Planned Parenthood backers say they will argue to the Parliamentarian that the budget impact of the language is “merely incidental” to the policy aim and, therefore, should not be allowed in the Senate bill.
5. Insurance market reforms
Senators are also struggling with provisions of the House-passed bill that would allow states to waive certain insurance requirements in the Affordable Care Act, including those laying out “essential” benefits that policies must cover and those banning insurers from charging sicker people higher premiums. That language, as well as an amendment seeking to ensure more funding to help people with preexisting conditions, was instrumental in gaining enough votes for the bill to pass the House.
Eliminating insurance regulations imposed by the ACA is a top priority for conservatives. “Conservatives would like to clear the books of Obamacare’s most costly regulations and free the states to regulate their markets how they wish,” wrote Sen. Mike Lee (R-Utah), who is one of the 13 senators negotiating the details of the bill, in an op-ed in May.
However, budget experts suggest that none of the insurance market provisions is likely to clear the Parliamentarian hurdle as being primarily budget-related.
Kaiser Health News is a national health policy news service that is part of the nonpartisan Henry J. Kaiser Family Foundation.
Anyone following the debate over the “repeal and replace” of the Affordable Care Act knows that the 13 Republican senators writing the bill are meeting behind closed doors.
While Senate Majority Leader Mitch McConnell (R-Ky.) continues to push for a vote before the July 4 Senate recess, Washington’s favorite parlor game has become guessing what is, or will be, in the Senate bill.
Spoiler: No one knows what the final Senate bill will look like – not even those writing it.
“It’s an iterative process,” Senate Majority Whip John Cornyn (R-Texas) told Politico, adding that senators in the room are sending options to the Congressional Budget Office to try to figure out, in general, how much they would cost. Those conversations between senators and the CBO – common for lawmakers working on major, complex pieces of legislation – sometimes prompt members to press through and other times to change course.
Although specifics, to the extent there are any, have largely stayed secret, some of the policies under consideration have slipped out, and pressure points of the debate are fairly clear. Anything can happen, but here’s what we know so far:
1. Medicaid expansion
The Republicans are determined to roll back the expansion of Medicaid under the Affordable Care Act. The question is, How to do it? The ACA called for an expansion of the Medicaid program for those with low incomes to everyone who earns less than 133% of poverty (around $16,000 a year for an individual), with the federal government footing much of the bill. The Supreme Court ruled in 2012 that the expansion was optional for states, but 31 have done so, providing new coverage to an estimated 14 million people.
The Republican bill passed by the House on May 4 would phase out the federal funding for those made eligible by the ACA over 2 years, beginning in 2020. But, Republican moderates in the Senate want a much slower end to the additional federal aid. Several have suggested that they could accept a 7-year phaseout.
Keeping the federal expansion money flowing that long, however, would cut into the bill’s budget savings. That matters: In order to protect the Senate’s ability to pass the bill under budget rules that require only a simple majority rather than 60 votes, the bill’s savings must at least match those of the House version. Any extra money spent on Medicaid expansion would have to be cut elsewhere.
2. Medicaid caps
A related issue is whether and at what level to cap federal Medicaid spending. Medicaid currently covers more than 70 million low-income people. Medicaid covers half of all births and half of the nation’s bill for long-term care, including nursing home stays. Right now, the federal government matches whatever states spend at least 50-50 and provides more matching funds for less wealthy states.
The House bill would, for the first time, cap the amount the federal government provides to states for their Medicaid programs. The CBO estimated that the caps would put more of the financial burden for the program on states, which would respond by a combination of cutting payments to health care providers like doctors and hospitals, eliminating benefits for patients, and restricting eligibility.
The Medicaid cap may or may not be included in the Senate bill, depending on whom you ask. However, sources with direct knowledge of the negotiations say the real sticking point is not whether or not to impose a cap – they want to do that. The hurdles are how to be fair to states that get less federal money and how fast the caps should rise.
Again, if the Senate proposal is more generous than the House’s version, it will be harder to meet the bill’s required budget targets.
3. Restrictions on abortion coverage
The senators are actively considering two measures that would limit funding for abortions, though it is not clear if either would be allowed to remain in the bill according to the Senate’s rules. The Senate Parliamentarian, who must review the bill after the senators complete it but before it comes to the floor, will decide.
The House-passed bill would ban the use of federal tax credits to purchase private coverage that includes abortion as a benefit. This is a key demand for a large portion of the Republican base. However, the Senate version of the bill must abide by strict rules that limit its content to provisions that directly impact the federal budget. In the past, abortion language in budget bills has been ruled out of order.
4. Reading between the lines
A related issue is whether House language to temporarily bar Planned Parenthood from participating in the Medicaid program will be allowed in the Senate.
While the Parliamentarian allowed identical language defunding Planned Parenthood to remain in a similar budget bill in 2015, it was not clear at the time that Planned Parenthood would have been the only provider affected by the language. Planned Parenthood backers say they will argue to the Parliamentarian that the budget impact of the language is “merely incidental” to the policy aim and, therefore, should not be allowed in the Senate bill.
5. Insurance market reforms
Senators are also struggling with provisions of the House-passed bill that would allow states to waive certain insurance requirements in the Affordable Care Act, including those laying out “essential” benefits that policies must cover and those banning insurers from charging sicker people higher premiums. That language, as well as an amendment seeking to ensure more funding to help people with preexisting conditions, was instrumental in gaining enough votes for the bill to pass the House.
Eliminating insurance regulations imposed by the ACA is a top priority for conservatives. “Conservatives would like to clear the books of Obamacare’s most costly regulations and free the states to regulate their markets how they wish,” wrote Sen. Mike Lee (R-Utah), who is one of the 13 senators negotiating the details of the bill, in an op-ed in May.
However, budget experts suggest that none of the insurance market provisions is likely to clear the Parliamentarian hurdle as being primarily budget-related.
Kaiser Health News is a national health policy news service that is part of the nonpartisan Henry J. Kaiser Family Foundation.
Anyone following the debate over the “repeal and replace” of the Affordable Care Act knows that the 13 Republican senators writing the bill are meeting behind closed doors.
While Senate Majority Leader Mitch McConnell (R-Ky.) continues to push for a vote before the July 4 Senate recess, Washington’s favorite parlor game has become guessing what is, or will be, in the Senate bill.
Spoiler: No one knows what the final Senate bill will look like – not even those writing it.
“It’s an iterative process,” Senate Majority Whip John Cornyn (R-Texas) told Politico, adding that senators in the room are sending options to the Congressional Budget Office to try to figure out, in general, how much they would cost. Those conversations between senators and the CBO – common for lawmakers working on major, complex pieces of legislation – sometimes prompt members to press through and other times to change course.
Although specifics, to the extent there are any, have largely stayed secret, some of the policies under consideration have slipped out, and pressure points of the debate are fairly clear. Anything can happen, but here’s what we know so far:
1. Medicaid expansion
The Republicans are determined to roll back the expansion of Medicaid under the Affordable Care Act. The question is, How to do it? The ACA called for an expansion of the Medicaid program for those with low incomes to everyone who earns less than 133% of poverty (around $16,000 a year for an individual), with the federal government footing much of the bill. The Supreme Court ruled in 2012 that the expansion was optional for states, but 31 have done so, providing new coverage to an estimated 14 million people.
The Republican bill passed by the House on May 4 would phase out the federal funding for those made eligible by the ACA over 2 years, beginning in 2020. But, Republican moderates in the Senate want a much slower end to the additional federal aid. Several have suggested that they could accept a 7-year phaseout.
Keeping the federal expansion money flowing that long, however, would cut into the bill’s budget savings. That matters: In order to protect the Senate’s ability to pass the bill under budget rules that require only a simple majority rather than 60 votes, the bill’s savings must at least match those of the House version. Any extra money spent on Medicaid expansion would have to be cut elsewhere.
2. Medicaid caps
A related issue is whether and at what level to cap federal Medicaid spending. Medicaid currently covers more than 70 million low-income people. Medicaid covers half of all births and half of the nation’s bill for long-term care, including nursing home stays. Right now, the federal government matches whatever states spend at least 50-50 and provides more matching funds for less wealthy states.
The House bill would, for the first time, cap the amount the federal government provides to states for their Medicaid programs. The CBO estimated that the caps would put more of the financial burden for the program on states, which would respond by a combination of cutting payments to health care providers like doctors and hospitals, eliminating benefits for patients, and restricting eligibility.
The Medicaid cap may or may not be included in the Senate bill, depending on whom you ask. However, sources with direct knowledge of the negotiations say the real sticking point is not whether or not to impose a cap – they want to do that. The hurdles are how to be fair to states that get less federal money and how fast the caps should rise.
Again, if the Senate proposal is more generous than the House’s version, it will be harder to meet the bill’s required budget targets.
3. Restrictions on abortion coverage
The senators are actively considering two measures that would limit funding for abortions, though it is not clear if either would be allowed to remain in the bill according to the Senate’s rules. The Senate Parliamentarian, who must review the bill after the senators complete it but before it comes to the floor, will decide.
The House-passed bill would ban the use of federal tax credits to purchase private coverage that includes abortion as a benefit. This is a key demand for a large portion of the Republican base. However, the Senate version of the bill must abide by strict rules that limit its content to provisions that directly impact the federal budget. In the past, abortion language in budget bills has been ruled out of order.
4. Reading between the lines
A related issue is whether House language to temporarily bar Planned Parenthood from participating in the Medicaid program will be allowed in the Senate.
While the Parliamentarian allowed identical language defunding Planned Parenthood to remain in a similar budget bill in 2015, it was not clear at the time that Planned Parenthood would have been the only provider affected by the language. Planned Parenthood backers say they will argue to the Parliamentarian that the budget impact of the language is “merely incidental” to the policy aim and, therefore, should not be allowed in the Senate bill.
5. Insurance market reforms
Senators are also struggling with provisions of the House-passed bill that would allow states to waive certain insurance requirements in the Affordable Care Act, including those laying out “essential” benefits that policies must cover and those banning insurers from charging sicker people higher premiums. That language, as well as an amendment seeking to ensure more funding to help people with preexisting conditions, was instrumental in gaining enough votes for the bill to pass the House.
Eliminating insurance regulations imposed by the ACA is a top priority for conservatives. “Conservatives would like to clear the books of Obamacare’s most costly regulations and free the states to regulate their markets how they wish,” wrote Sen. Mike Lee (R-Utah), who is one of the 13 senators negotiating the details of the bill, in an op-ed in May.
However, budget experts suggest that none of the insurance market provisions is likely to clear the Parliamentarian hurdle as being primarily budget-related.
Kaiser Health News is a national health policy news service that is part of the nonpartisan Henry J. Kaiser Family Foundation.