This month, Congress is expected to begin confirmation hearings for Donald Trump’s nominee for the supreme court, Amy Coney Barrett. If confirmed, she could be the decisive vote in a case being heard days after the election, which seeks to strike down the landmark Affordable Care Act – a move that could leave millions of Americans without healthcare in the middle of a pandemic.
Related: Amy Coney Barrett: what will she mean for women’s rights?
Trump has pledged to kill the ACA since day one of his presidency, but despite comments to the contrary he has no official plan to replace the healthcare reform law, commonly known as Obamacare. Without it, 20 million Americans could lose their health insurance.
Joe Biden opened the presidential debate on Tuesday night by warning about the threat posed by Trump: “He’s in the supreme court right now trying to get rid of the Affordable Care Act.”
Sabrina Corlette, co-director of the Center on Health Insurance Reforms at Georgetown University, said if Coney Barrett is confirmed, “it dramatically increases the chances that the ACA will be struck down.”
“That said, because there are so many conservative legal scholars that have said this is a ridiculous, meritless lawsuit, one can only hope and pray she’s in that camp,” she said.
Obamacare has been in place for 10 years and underpins much of the country’s healthcare system. Without it, things such as protections for people with pre-existing conditions would disappear.
Before Obamacare, millions of Americans who had cancer, multiple sclerosis or other diseases could be denied healthcare coverage because of their condition. At least 54 million people have a pre-existing condition which would have been deniable before the ACA.
People who contract Covid-19 could also be denied coverage, be charged higher premiums, or have future treatment for coronavirus turned down.
Video: Trump’s executive order on healthcare protects people with pre-existing conditions: Azar (FOX News)
Laura Packard, a healthcare advocate and cancer survivor, said she was concerned about losing health insurance because of her pre-existing condition.
Packard was diagnosed with stage 4 cancer, Hodgkin’s lymphoma, three years ago and has watched as the Republican party fought against the healthcare law she credits with saving her from drowning in medical debt. She is currently in remission, but she is self-employed and has healthcare through the ACA marketplace.
“If my cancer comes back, it will be hundreds of thousands of dollars to save my life,” Packard said. “That’s money I don’t have.”
The supreme court, however, is not guaranteed to rule against Obamacare even with a conservative majority.
Central to the case is whether the individual mandate, which requires people to have health insurance, is constitutional. If the court decides it is not, the justices must also decide whether the individual mandate can be separated from the law or if its unconstitutionality means the rest of the law is also invalid.
In two previous challenges, the supreme court has left the ACA largely intact. And the plaintiffs’ arguments and lower-court rulings in the case have been criticized by mainstream legal scholars and politicians from both parties.
Barrett has been critical of the ACA, but it is not yet known if she thinks it is legally sound to throw out the whole law simply because the individual mandate is ruled unconstitutional.
The court’s decision may not come until the end of June 2021. If it rules to strike down Obamacare, a top concern is there is no plan to replace it.
Georgetown University’s Corlette said: “It is hard to overstate the consequences because they would be so widespread and in some ways hard to predict because we have a law now that’s been on the books 10 years and has fundamentally shifted the ways hospitals operate, doctor’s operate, insurance companies operate and consumer expectations.”
Trump has promised a healthcare plan better than Obamacare since his 2016 campaign, but the closest he has come to showing what would replace it arrived last week.
Trump last week issued executive orders seen as largely symbolic, including one which he said would protect pre-existing conditions, but in practice doesn’t guarantee coverage. The health secretary, Alex Azar, has acknowledged the order is limited in scope. “He’s making a clear, defined statement of United States policy that people with pre-existing conditions are protected,” Azar said in a press call. He promised to work with Congress to make that happen, should the ACA be struck down.
“It was all flash and no substance,” Corlette said. “Simply declaring it is the policy of the United States that people with pre-existing conditions should have health insurance is meaningless,” Corlette said. “You need law and enforcement of the law to provide those protections.”
At the debate on Tuesday, Trump repeatedly evaded questions from moderator Chris Wallace about what his replacement plan is. In an attempt to focus the debate, Wallace told the president he had “never in these four years come up with a plan, a comprehensive plan, to replace Obamacare”.
“Yes, I have,” Trump replied. “Of course, I have.”