The Affordable Care Act at Risk: What Does This Mean for You?
On November 10, 2020, the United States Supreme Court will hear arguments in a legal challenge that seeks to strike down the Affordable Care Act (ACA). While the ACA remains the law of the land for now, it is important for all people, including cancer patients, survivors, and their loved ones, to understand the potential implications and what this case means for them. If the Supreme Court finds that the whole law is unconstitutional, it could have serious effects on access to care, removing many essential patient protections that cancer patients and survivors depend on.
Protecting Patients: Background on The Affordable Care Act
In 2010, the Patient Protection and Affordable Care Act (ACA), also referred to as ObamaCare, was passed into law. Although we have seen multiple attempts to repeal the law, the ACA has remained in place for nearly ten years and 20 million people have gained insurance as a result (Center on Budget and Policy Priorities, 2019). From 2010 to 2018 the number of non-elderly Americans who are uninsured decreased by 18.6 million as the ACA went into effect (Tolbert et al., 2019). There is also evidence that points toward a trend in increased early-stage diagnoses for colorectal, lung, breast, and pancreatic cancer in states that increased access to health care through Medicaid expansion because of the ACA (Jemal et al., 2017).
The law included key provisions that have impacted nearly all Americans, including:
Expanded Medicaid eligibility for low-income adults, up to 138% of the federal poverty level. To date, 38 states and the District of Columbia have expanded Medicaid, and over 12 million people have gained coverage as a result (Kaiser Family Foundation, 2019).
Protected Americans with pre-existing conditions, including cancer. Under the ACA, health insurance companies cannot refuse to cover you or charge you more if you have a pre-existing condition.
Allowed young adults to stay on their parent's insurance until the age of 26.
Determined that health insurers cannot set annual or lifetime limits (caps) on how much they will pay for the benefits that are covered by your plan.
Established individual marketplaces in every state which offers individuals and small businesses the opportunity to shop for health insurance.
The ACA has become a critical safety net for millions of Americans and has become even more important during the COVID-19 pandemic. The significant impact of job loss, coupled with the loss of employer-based health coverage for many, is leaving Americans more vulnerable than ever at exactly the time when access to affordable health care is most important. A May 2020 analysis from the Kaiser Family Foundation found that nearly 80% of Americans who have lost health insurance due to the pandemic are likely eligible for ACA coverage through Medicaid or Marketplace tax credits.
Texas vs. the United States: Building up to the Supreme Court
In December 2017, the U.S. Congress passed the Tax Cuts and Jobs Act into law. Among other provisions, the law repealed the ACA’s “individual shared responsibility penalty,” otherwise known as the individual mandate. The mandate imposed a penalty through a tax payment for individuals who did not secure health care coverage. The penalty is effectively no longer applicable because the Tax Cuts and Jobs Act reduced the amount individuals would owe to zero. This provision of the ACA had been created to ensure that people who were both healthy and those living with chronic illnesses would purchase health care coverage to ensure a “balance in the marketplace.” In other words, people who have not experienced illness and those living with chronic illnesses would each help to fund the health care system.
In 2018 the Texas Attorney General, along with 18 other state attorneys general, two governors, and two individuals filed a lawsuit in the state of Texas, alleging that the ACA has become unconstitutional since the repeal of the individual shared responsibility penalty. District Court Judge Reed O’Connor ruled in favor of those who filed the case who argued that because the coverage mandate was repealed as part of the 2017 Tax Cuts and Jobs Act, the entire law is invalid and must be struck down. This ruling was appealed, and the 5th Circuit Court took up the case. In a 2-1 decision, the 5th Circuit ruled in December 2019 that the mandate is unconstitutional, but not the whole ACA, leaving the rest of the law in limbo.
California vs. Texas: The ACA at the Supreme Court
With the 5th Circuit Court ruling, the case was initially sent back to District Court Judge O’Connor, who already has held the law unconstitutional, for analysis regarding whether the ACA can stand without the individual mandate. However, California Attorney General Xavier Becerra appealed the decision to the United States Supreme Court. The Supreme Court agreed to hear the case, which asks whether the law’s individual mandate is unconstitutional and, if so, whether the rest of the law can remain standing. The case is scheduled for oral arguments on November 10, 2020.
The recent death of U.S. Supreme Court Justice Ruth Bader Ginsburg has also raised many questions about the future of the ACA. While there has been a 5-4 conservative majority on the Supreme Court, Chief Justice Roberts has voted with the more liberal judges to save the ACA in the past. However, there are now only 8 Justices on the Court which leads to the possibility of the case winding up in a 4-4 tie. President Trump has nominated Judge Amy Coney Barrett to replace Justice Ginsburg, and, if confirmed as a Justice by the U.S. Senate prior to November 10th, could be the decisive vote in a case. Judge Coney Barrett has previously criticized the decision that upheld tenets of the ACA.
What could this mean to you and other people with chronic or life-threatening illnesses like cancer?
The ACA will remain the law of the land for now. There are several potential outcomes of the case, each with their own implications, For example, “if the Supreme Court finds that the individual mandate is unconstitutional and invalidates only that provision, the practical result will be essentially the same as the ACA exists today, without an enforceable [individual] mandate” (Musumeci, 2020). However, if the Supreme Court finds that the individual mandate is unconstitutional and is inseverable from the ACA, making the whole law unconstitutional, that could have serious effects on access to care, removing many essential patient protections that many cancer patients and survivors depend on. If the ACA is struck down, and no other law is put in place with similar provisions, protections for people with pre-existing conditions will also be removed and insurers could return to the practice of:
Denying coverage to certain people;
Canceling coverage midyear;
Charging higher premiums to older people or those with pre-existing conditions;
Setting lifetime or annual limits; and
Refusing coverage for essential health benefits like prescription drugs, mental health care, emergency care, and more.
Others would simply find insurance unaffordable even if they qualified. For example, 9.2 million marketplace enrollees receive tax credits to help them buy insurance and 5.3 million people receive cost-sharing reductions (Rampell, 2020). Additionally, the 12 million people who gained coverage as a result of Medicaid exemption could be in jeopardy of losing coverage. Further, individuals under 26 could be removed from their parent’s plans and minimum essential coverage could be eliminated.
Now is the time to contact your members of Congress and ask them to uphold their promise and protect ACA provisions that ensure cancer patients and survivors continue to have access to quality, comprehensive, and affordable care. Sign up for our Grassroots Network to receive regular updates about policies that could impact cancer patients and their families, and make your voice heard with decision makers at every level. Stay tuned for opportunities for action!
Engage with the Cancer Policy Institute on Twitter and speak out on policies that will impact cancer patients and their loved ones.
Center on Budget and Policy Priorities. (2019). Chart Book: Accomplishments of Affordable Care Act. Retrieved from https://www.cbpp.org/research/health/chart-book-accomplishments-of-affordable-care-act
Goldstein, A. (2019, December 18). Individual mandate ruled unconstitutional, ACA in limbo. The Washington Post. Retrieved from https://www.washingtonpost.com/health/appeals-court-rules-acas-individual-mandate-unconstitutional-lower-court-to-decide-whether-rest-of-law-can-stand-without-it/2019/12/18/3443fd3e-c03c-11e9-b873-63ace636af08_story.html
Jemal, A., Lin, C.C., Davidoff, A.J., Han, X. (2017). Changes in Insurance Coverage and Stage at Diagnosis Among Nonelderly Patients With Cancer After the Affordable Care Act. Journal of Clinical Oncology, 35:35, 3906-3915. https://ascopubs.org/doi/full/10.1200/JCO.2017.73.7817
Kaiser Family Foundation. (2019). Medicaid Expansion Enrollment. Retrieved from https://www.kff.org/health-reform/state-indicator/medicaid-expansion-enrollment/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.
Kaiser Family Foundation. (2020). As Unemployment Skyrockets, KFF Estimates More than 20 Million People Losing Job-Based Health Coverage Will Become Eligible for ACA Coverage through Medicaid or Marketplace Tax Credits. Retrieved from https://www.kff.org/coronavirus-covid-19/press-release/as-unemployment-skyrockets-kff-estimates-more-than-20-million-people-losing-job-based-health-coverage-will-become-eligible-for-aca-coverage-through-medicaid-or-marketplace-tax-credits/.
Rampell, C. (2020, September 24). How RBG’s death could trigger a devastating blow to the U.S. health-care system. The Washington Post. Retrieved from https://www.washingtonpost.com/opinions/how-rbgs-death-could-trigger-a-devastating-blow-to-the-us-health-care-system/2020/09/24/30e87fe8-fe98-11ea-b555-4d71a9254f4b_story.html.
Musumeci, M. (2020). Explaining California v. Texas: A Guide to the Case Challenging the ACA. Kaiser Family Foundation. Retrieved from https://www.kff.org/health-reform/issue-brief/explaining-california-v-texas-a-guide-to-the-case-challenging-the-aca/.
Tolbert, J., Orgera, K., Singer, N., Damico, A. (2019). Key Facts about the Uninsured Population. Kaiser Family Foundation. Retrieved from https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.