December 14, 2020
by Marie Assaf, Doctoral student in Political Science at the Centre d'Études Nord Américaines (CENA), EHESS and winner of the 2020-2021 Institut des Amériques-Fulbright award.
March 23, 2020 was the anniversary date of the enactment of the Affordable Care Act (ACA), commonly known as Obamacare.
Today, while the country will soon reach the 15 million contaminations and 285 000 deaths because of the Covid-19 pandemic, the issue of health coverage for Americans is unprecedented. A major point in the Democratic primaries, health legislation weighed in as one of the main preoccupations of voters during the presidential election. Even at the truly conservative Fox News TV channel, the polls show that over 70% of voters are favorable to government controlled healthcare coverage. The pandemic brought to light how vital ACA was, a law that was controversial when it was put in place.
And yet, all reports agree on this point: the ACA opened the door to wider health coverage. Traditionally, Americans get health insurance through their jobs, or they belong to the millions of people who don't have any insurance and depend on the weak safety nets offered by the federal government (of note that it is estimated that 30 million people in the United States do not have insurance). There are two public assistance programs that indeed fill the gap for the weakest (especially old people and handicap people) and the poorest: Medicaid and Medicare. Though these historic programs were not impacted by the ACA (the law did however provide Medicaid to more than 11 million additional people), the individual health insurance market was totally disrupted by the new regulations imposed on insurance companies.
First of all, the ACA protects people with pre-existing conditions. They can no longer be refused coverage and do not pay additional fees. The law also creates an insurance market: the private plans chosen by the government fulfill requirements for consumers rights. All plans on the Marketplace health insurance cover ten essential health benefits (emergency services, hospitalizations, maternity care, prescription drugs, rehabilitative services, management services for certain chronic diseases, pediatric care, however dental and eye care are not considered essential), and also a range of preventative services. The plans protect the insurees' choice of doctors and offers better information concerning the cost and care covered by the insurance.
The system, based on private offers, encourages people to enroll in an insurance plan on the healthcare.gov platform. It promotes competition which helps keep the price of the premiums low. In this way, additional guarantees are put in place. For example, if a person with low revenus, but with no access to federal insurance such as Medicaid, chooses a plan via this market, they are eligible for state aid to pay for the difference in health insurance, as well as tax subsidies. Finally, another major distinguishing feature of the law is the individual mandate to get private insurance. Citizens must get insurance or they will pay a fine (as additional taxes). Most of these protections have trouble competing against the private insurance companies that are not in the market and continue to offer a more complete coverage.
But while the pandemic is raging and that we ignore what all the SARS-CoV-2 health consequences will be on people, the ACA is in danger. As soon as he arrived at the White House in 2017, president Donald Trump promised to repeal his predecessor's social endeavor. In all the federal courts, the Republicans hammered away at weakening the law, sometimes successfully. Today, government Trump's anti-ACA crusade is focused on the individual mandate, that its critics feel is unconstitutional.
In 2012, the Supreme Court had already ruled this mandate legal by declaring that it fit under the tax prerogative of Congress (NFIB v. Sebelius). And in 2015, it again confirmed its legality by authorizing the federal government to provide fiscal advantages to help the middle class and the poor get insurance nationwide (King v. Burwell). However the 2017 Tax Cuts and Jobs Act reduced the initially scheduled fine to zero dollars. The Supreme Court has until the month of June to decide, and we will see if the nomination of two conservative judges by president Trump has changed its position on the right to health.
If the Supreme Court decides that the ACA is unconstitutional, it is estimated that close to 20 million Americans could lose their insurance coverage. To that number, can be added the victims of the pandemic. Hundreds of thousands of people on unemployment today have to turn to the program in order to quickly get insured and at a lesser cost. To the 20 million uninsured Americans in 2019, there could be an additional one million. Many Americans have already said that without the ACA, they could not have gotten health insurance to protect themselves from the pandemic.
Left: The Supreme Court's decision is expected by June (Source Ian Hutchinson - Unsplash).
Right: New York City shops closed. At the height of the epidemic in May, over 24 million Americans found themselves unemployed (Source: Jack Cohen - Unsplash).
The safety net of these different options still seems quite inadequate for the consequences of this public health crisis. Covid-19 has accelerated the social crisis in the United States by plunging thousands of people into poverty. The ACA had already been criticized for its lack of ambition since it really isn't universal health coverage as advocated by the unhappy candidates Elizabeth Warren and Bernie Sanders - or that most in western European countries have. The Covid-19 pandemic highlights these failures and leads to seriously rethinking the US' social system.
For his part, Joe Biden has long been vague about his politics on healthcare. The growth of the crisis has forced him to become more ambitious. He proposes a reinforcement of the ACA, by increasing financial assistance as well as a "Bidencare" - but by still leaving the health insurance sphere in the hands of the private sector. The federal government would negociate the cost of care as many private companies do with their employees. Anybody could use this market and find cheaper insurance than the one provided by one's job, which would significantly reduce the hold by private insurance companies when negotiating with individuals. Joe Biden also indicated his wish to extend Medicaid coverage to 12 States that are still refusing to do it despite the ACA vote. It would be the quickest way to provide coverage to close to 4 million still uninsured people.
But to be able to accomplish all of that, the President-Elect must deal with uncooperative States and a legislative House that is still hesistant. In Congress, he will have to convince his party's left wing that doesn't find this plan ambitious enough. At the Senate, where the Democrats only have 48 seats for now, all eyes are focused on Georgia, whose two seats are still in the balance since the election was too close in November. The major role this southern State played into Joe Biden's election has led the Democratic party to hope for a Senate majority. Time is ticking. On top of the many crises the US is going through already, there is the risk of adding a health insurance crisis. It would add to an already heavy outcome in the number of pandemic victims, and the overwhelmed hospitals would have to deal with a major financial crisis by continuing to care, at a loss, for uninsured people.