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Trump reiterates support to kill ACA — despite pandemic — as House, states file briefs with SCOTUS

This article was written by Rebecca Pifer and originally published by HealthCare Dive on May 6, 2020. 

Dive Brief:

  • President Donald Trump reiterated his support Wednesday for repealing the Affordable Care Act, with a case that could do just that pending at the Supreme Court. An estimated 20 million Americans could lose health insurance at a time of unprecedented unemployment if the law was scrapped.
  • “We want to terminate healthcare under Obamacare and replace it,” Trump told the White House press pool on Wednesday, referring to a red state-led lawsuit declaring the ACA unconstitutional. The Trump administration has yet to provide an alternative to the decade-old law.
  • The remarks come as both the Democrat-led House of Representatives, and the 20 states petitioning in defense of the ACA, submitted briefs to the Supreme Court in support of the law on Wednesday.

Dive Insight:

While still a hot button issue among partisans, the Affordable Care Act has enjoyed growing popularity across the political spectrum amid Republicans’ failed repeal-and-replace efforts. While the Trump administration has spent years chipping away at key tenets of the Obama-era law, the future of which now rests with the Supreme Court.

The ACA insures roughly 22 million individuals through its public marketplaces, expanded Medicaid in 37 states, codified protections for pre-existing health conditions and allows adults under the age of 26 to be covered through their parents’ health insurance.

The looming case comes as staggering levels of unemployment throw millions of Americans off their employer-sponsored plans. If trends continue, up to 43 million people could lose their employer-sponsored insurance, according to one estimate from the Robert Wood Johnson Foundation, raising the demand for ACA exchange and Medicaid coverage.

Texas leads 18 red states arguing that the law is unconstitutional because a 2017 tax bill abolished the its individual mandate. Legal scholars have criticized that reasoning, but the conservative Fifth Circuit Court of Appeals largely agreed late last year. The Supreme Court in early March agreed to hear the case, marking the third time the decade-old law has appeared in front of the nation’s highest court.

Democratic attorneys general and the House of Representatives are defending the ACA, with both the California-led states and the House separately submitting filings to the court on Wednesday backing the law.

“Although Congress may not have enacted the ACA with the specific purpose of combating a pandemic, the nation’s current public-health emergency has made it impossible to deny that broad access to affordable health care is not just a life-or death matter for millions of Americans, but an indispensable precondition to the social intercourse on which our security, welfare, and liberty ultimately depend,” the House’s brief reads.

The cadre of states defending the law, led by California, argued in their filing the ACA gave tens of millions of Americans access to health insurance, while saving the states substantial amounts of money and lowering healthcare costs for the consumer.

The Department of Justice, which declined to defend the law last year, has a Wednesday deadline to file a brief with SCOTUS, and did not respond to a request for comment by time of publication. But the suit has been a source of dissension in the White House in recent days, with Attorney General Bill Barr asking the administration to back off the suit due to the political ramifications of undermining the ACA during the pandemic, according to multiple reports.

More than 100 organizations led by the Harvard Law School Center for Health Law & Policy Innovation sent a letter to Texas’ attorney general on Wednesday asking him to drop the lawsuit. “Eliminating the ACA would only exacerbate the pandemic and upend our health care system when we can least afford it,” the coalition wrote.

Despite the president’s remark, the administration has undertaken a series of actions over Trump’s first term that have undermined the ACA and kept it from running smoothly, insurance experts say. Along with backing the elimination of the law in court, HHS cut the open enrollment period for ACA plans, slashed the site’s navigation and advertising budgets, stopped cost-sharing reduction payments to insurers and expanded short-term and association health plans offering cheap but bare-bones coverage. That last move sparked a lawsuit and a Congressional investigation.

The administration has yet to publish a plan in event the ACA is overturned, though top HHS officials, including CMS head Seema Verma, have repeatedly said such a plan exists, without offering no concrete evidence.

SCOTUS will hear the case during its next term, which starts in October. It’s highly unlikely the court will reach a decision before the upcoming presidential election in November.

Unlike the president, presumptive Democratic nominee former Vice President Joe Biden’s healthcare agenda hinges on bolstering the beleaguered legislation by increasing​ plan subsidies, among other measures. The candidate also wants to create a government-run public option and lower the age of eligibility for Medicare down from 65 to 60.

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