Originally published on April 23, 2020 in Bloomberg Law. Written by Robert Greenwald and Will Dobbs-Allsopp, HLS Law Student.
The Affordable Care Act remains one of our best resources in the struggle to contain the coronavirus. The White House and Republican state officials seeking to void the ACA should withdraw their case now before the U.S. Supreme Court, write Harvard Law Professor Robert Greenwald and Will Dobbs-Allsopp.
Even in the midst of the worst domestic crisis in over a century, the White House and Republican state officials still want the U.S. Supreme Court to invalidate the Affordable Care Act in a case set for review later this year.
It’s a baffling decision given the circumstances: amid escalating health-care needs, increased strain on our health systems, rising rates of uninsured, and an impending recession, the ACA offers policymakers critical tools that can help steer the nation through the Covid-19 pandemic.
In the U.S., Economic Downturns Carry Public Health Implications
Because many Americans receive health insurance through their employer—itself a vestige of an earlier crisis—a pink slip frequently also entails a loss of health insurance coverage. In recent weeks, the Department of Labor has reported record-shattering unemployment insurance claims, more than 22 million to date. One analysis predicts that the number of employees losing health coverage will grow to between 12 million and 35 million by the crisis’s end.”
Fortunately, lawmakers crafted the ACA in the immediate aftermath of the 2008 financial crisis, and thus with economic emergencies in mind. Today the law directly insures more than 22 million individuals, and guarantees coverage to many more by allowing young adults to remain on their parents’ plan and offering protections to those living with pre-existing conditions. That number will, as the legislation’s drafters intended, assuredly grow as job losses mount in the months to come.
The ACA’s state and federal health exchanges will offer many workers who lose their job, and thus their employer-sponsored health coverage, access to subsidized, affordable private insurance plans. And for those who fall into a precarious financial situation, Medicaid expansion programs can provide comprehensive coverage, at least in the 37 expansion states. (States that have failed to adopt the expansion should do so, or they risk exacerbating the pandemic).
As a result, millions of newly-vulnerable Americans will be able to seek medical counseling and care for Covid-19-related (and other) conditions, a fact that will save lives and help ensure those infected can be identified and treated. After all, individuals with health insurance coverage are much more likely to seek out necessary care than those without. And by expanding the insured population, the ACA helps safeguard the financial solvency of hospitals and other front-line providers, who foot the bill when uninsured patients show up at their door.
Voiding the ACA Would Have Dire Consequences
The ACA’s recession-mitigation features, mostly overlooked given the decade of steady, if slow, economic growth that followed its implementation, will soon become apparent—that is, unless the Trump administration and its red-state allies have their way at the Supreme Court later this year. In the case, California v. Texas, they primarily take aim at the constitutionality of the law’s individual mandate, but only in an effort to ask the high court to void the entire ACA.
Yet the world has changed dramatically in recent weeks. In these difficult circumstances, the Republican litigants in the case should ask themselves if they are truly prepared for what will happen if they prevail.
To start, the Centers for Disease Control and Prevention would have to trim its infectious disease and local public health programs, which are partially financed through the ACA. Insurers would no longer need to provide an eventual Covid-19 vaccine free-of-charge, as the law currently requires.
Meanwhile, millions of their constituents would immediately lose access to health care during a pandemic that the White House estimates could kill up to 240,000.
Increasing numbers of uninsured individuals would arrive in emergency rooms with no way to pay for care, financially overwhelming hospitals already on the brink. Rightfully fearful of sky-high medical costs, many others would avoid filling necessary prescriptions or seeking treatment for Covid-19 symptoms, in the process endangering their own lives, undermining public health strategies, and prolonging the pandemic’s stranglehold on the economy.
In short, if the Department of Justice and Republican state attorneys general win, Americans will needlessly die and the crisis will drag on. Luckily, an easy solution is at hand: They should drop the case.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Robert Greenwald is a clinical professor of law at Harvard Law School and faculty director of its Center for Health Law and Policy Innovation. For over 30 years he has been actively involved in health reform design and implementation at the federal and state levels. From 2010-15 he served on President Obama’s Advisory Council on HIV/AIDS focusing on health policy and the Affordable Care Act.
Will Dobbs-Allsopp previously worked as a journalist covering Congress for Morning Consult. You can follow him on Twitter @wcd_a.
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