Opinion | How RBG’s death could trigger a devastating blow to the U.S. health-care system


Congress also designed everything in the law to be inextricably linked, the plaintiffs argue, so if the individual mandate is gone, the rest of the law should fall, too.

Of course, just as it acted to zero out the mandate, Congress had the opportunity to destroy the rest of the law. Instead, lawmakers voted, many times, not to do so. For this and other reasons, even conservative legal scholars who oppose Obamacare have dismissed the case as baloney.

But lower courts agreed with the plaintiffs, and the question has reached the Supreme Court. A range of outcomes is possible, depending on whether President Trump gets another court pick confirmed in time, and whether justices vote as they have in prior challenges to the law.

Obamacare’s destruction, in whole or in part, could wreak havoc and financial ruin.

If the ACA were struck down, its protections for people with preexisting conditions would disappear. Insurers wouldn’t have to sell plans to everyone, at nondiscriminatory rates; they could exclude coverage for illnesses they determined to be preexisting; and they could reimpose caps on how much they paid out for essential benefits. (That is, insurers could revert to their pre-Obamacare practices.)

In a 2019 analysis, the Kaiser Family Foundation estimated that 54 million non-elderly adults had preexisting conditions serious enough that they would likely be outright declined health insurance, absent these protections. It’s possible the number has risen. Nearly 7 million Americans have tested positive for the novel coronavirus, whose long-term health consequences are still unknown.

Millions more would find insurance unaffordable, even if they still qualified for it. As of February, 9.2 million marketplace enrollees received tax credits to help them buy insurance, and 5.3 million received cost-sharing reductions. Both subsidies exist through Obamacare.

Medicaid coverage would shrivel, too.

As of mid-2019, 12 million low-income people had coverage because Obamacare’s Medicaid expansion made them newly eligible. This number, too, has likely risen, given the millions of Americans who lost employer-sponsored insurance in the recession.

These are some of the best-known changes under Obamacare, but many more of the law’s protections are on the chopping block: minimum essential coverage for benefits such as prescriptions and substance abuse treatment. The ability for children to stay on their parents’ plans through age 26. Required coverage of preventive care with no cost-sharing in private insurance, the Medicaid expansion and Medicare.

Yes, even Medicare enrollees would be affected through many other at-risk ACA provisions, including one that gradually closes the “doughnut hole” for prescription drugs.

In other words, the death of a single jurist may result in tens of millions of Americans losing their health insurance and 18 percent of the U.S. economy getting thrown into chaos, all in the middle of public health and economic crises. This despite the law’s net-positive favorability numbers, after surviving a decade’s worth of congressional and legal challenges.

This is not exactly the sign of a robust democracy, as Georgetown professor Donald P. Moynihan has pointed out.

Now, optimists may argue there are off-ramps from this dire scenario.

Republicans claim to have a plan to protect people with preexisting conditions. In fact, Republicans don’t have any health-care plan, period.

States could try to reconstruct some of Obamacare’s provisions. But they lack money to fund their own Medicaid expansions. And absent billions of federal dollars of subsidies to help healthy people buy insurance, only the sick will do so and markets will death-spiral.

Of course, Congress could pass narrow legislation formally killing the individual mandate or raising its penalty to, say, $1. This would moot the lawsuit. But having spent the past decade attacking it, the GOP doesn’t want to be seen as saving Obamacare. And even if Democrats achieve unified control of government next year, a targeted legislative effort to fix Obamacare could well expand (or devolve) into a much broader logjam over the future of the health-care system.

Health coverage has already declined in recent years, thanks to backdoor sabotage of an imperfect but critical law. Front-door sabotage may be imminent, and America isn’t prepared.

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