Donald Trump’s dream of eliminating the Affordable Care Act appears closer to becoming reality after the two GOP-appointed judges on the Fifth Circuit Court of Appeals sitting in New Orleans indicated on Tuesday that they were ready to strike down the entire law. And if that happens, you and your family will lose all the benefits guaranteed by the law including coverage for pre-existing conditions and being able to keep children on your policy until they are 26, and insurance companies will again be able to re-impose caps on health insurance benefits.
I’m sure many are wondering why is the issue of the validity of the ACA being considered again considering there was a famous Supreme Court decision back in 2012 that upheld the law? Simple, this is 100 percent the fault of Trump and the GOP in Congress. That’s not a partisan statement, that’s the plain truth.
In December 2017, Trump and the GOP, as part of their massive tax cut that helped corporations and wealthy Americans, also repealed the individual mandate of the ACA. At the time the bill was being debated, numerous experts warned that repealing the individual mandate would jeopardize the entire ACA and its protections, such as for pre-existing conditions. But neither Trump nor the GOP cared about those consequences since their priority was giving a tax cut to their wealthy donors while helping Trump accomplish his goal of repealing all of President Obama’s achievements.
After that bill passed, in stepped 20 GOP state officials who filed a federal lawsuit arguing that since the individual mandate had been repealed, the rest of the ACA could no longer stand. Their rationale was that the 2012 U.S. Supreme Court decision that found the ACA was constitutional had predicated its ruling on the individual mandate being a lawful tax that Congress could impose and hence all other provisions of the law were also valid. But now these Republicans argued with that tax (a/k/a mandate) gone, the entire ACA was invalid.
Tragically for us, a GOP-appointed federal judge ruled last December in favor of these Republicans, declaring the entire ACA unconstitutional.
Trump rejoiced at this court ruling, tweeting, “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!” Trump then laughably urged Congress to pass health care for all Americans, but without offering any details.
And despite Trump's (false) promise at his 2020 campaign kick-off in June that he will “always protect patients with preexisting conditions,” since March the Trump administration has joined with the 20 other GOP plaintiffs fighting to end the ACA and all the safeguards it affords Americans. That brings us to Tuesday’s arguments, where the two GOP-appointed judges on the three-judge panel, as CNN reported, “strongly suggested” that when Trump and the GOP Congress eliminated the individual mandate, it had jeopardized the entire law. That means if these two judges rule in favor or Trump and the GOP, the ACA is gone. (Obviously, there would be an appeal to the U.S. Supreme Court, where we’ll all be watching John Roberts, but it’s likely the GOP-controlled court would side with Trump.)
If the ACA is struck down as Trump and GOP are advocating, the horrific impact will be felt by all Americans with health insurance, not just those who obtain coverage through the ACA marketplace, in a wide range of ways. But potentially the worst real-world effect would be ending coverage for pre-existing conditions.
As I saw first-hand as a lawyer representing big health insurance companies, that would mean if you had any medical condition prior to obtaining a new policy (such as when people change jobs), the insurer could do one of a few things.
One, offer to cover that pre-existing condition at an outrageously high price with large co-pays and deductibles. Two, offer you insurance but exclude covering the pre-existing condition.
Three, deem you uninsurable if the insurance company views you as a too much of a risk from a financial perspective. (Typical conditions that were excluded or deemed a person uninsurable included cancer, arthritis, sleep apnea, congestive heart failure, and even pregnancy.) In these last two scenarios, you would be forced to personally pay exuberant medical costs, which history tell us would result in countless Americans losing their life savings, their homes, filing for bankruptcy, etc. And worse, some without access to health care because of no coverage will die as studies have shown.
And pre-ACA, if you contracted a high-cost medical condition, the health insurance carriers would often hire lawyers like me to subpoena all your prior medical records. And if it turned out that you failed to disclose on your insurance application even one treatment for the condition you now want covered, the insurer would not just deny coverage but typically rescind the entire policy, claiming fraud.
That’s what America will look like again if the ACA is struck down. And tragically it appears we are one step closer to that horrific scenario, all because of Trump and his GOP allies.