King’s chaos

The fifth anniversary of the passage of the Affordable Care Act (ACA) on March 23 should be marked by celebration: over 16 million more people have health coverage now than five years ago. The rate of emergency room visits by young people has dropped 1.4 percent, translating into 191,000 fewer visits. Millions more have access to free preventive care, lifesaving tests and the peace of mind that comes with holding an insurance card in their pockets. But instead of celebrating, these newly insured wait anxiously as the Supreme Court, once again, holds the fate of the ACA in its hands. 

Earlier this month, in King v. Burwell, the Supreme Court heard a compelling defense of the law and a far less believable challenge to it. The nine justices will now wrestle with what is really a straightforward case of statutory interpretation: Are the ACA’s tax credits available to people in every state, regardless of the type of marketplace the state uses? A ruling for the government and the ACA continues as a shining example of reform in action. A ruling for the challengers and the Court unleashes chaos.

{mosads}Congress passed the ACA for a reason, which is abundantly clear from the text: expand access to affordable health coverage. The tax credits are the means by which the law expands coverage to millions who otherwise could not afford it. Limiting the ACA’s tax credits, as the challengers argue, is diametrically opposed both to that goal and to the text of the statute itself.

The wrong outcome in King would dismantle coverage for millions living in the 34 states relying on Healthcare.gov. If the numbers by Rand are right, that translates into a staggering 9.6 million people who would lose coverage because they cannot afford their monthly premiums. These are people who have finally been able to see a doctor, sometimes for the first time in decades; women who have received mammograms and cancer screens to catch their diagnoses early; and people who can now access routine care to stay healthy. That figure also includes millions of older adults who will find themselves in a vicious coverage gap: not yet eligible for Medicare, not poor enough for Medicaid, but too poor to buy private coverage.

And from there, the havoc wrought by King and the undoing of the ACA’s progress will continue.

Shifting 9 million people from insured to uninsured would send insurance markets into a tailspin. Insurers would be left with a smaller and sicker pool of people to cover than the statute envisions. The only way to ready that storm would be to raise rates, which could shoot up 47 percent. And this impact is even before you take a look at the heart-wrenching stories of people diagnosed with cancer and other diseases who will have to choose bankruptcy or worse in order in order to get life-saving treatment. 

Health providers, including hospitals, would also take a major hit. The ACA is supposed to decrease the number of uninsured patients whose only health care is the emergency room, which pushes the costs for their care to people paying for insurance. Take away the subsidies, and hospitals will be worse off than before the ACA. That’s because the ACA reduces the amount of federal money hospitals can receive for providing free care to uninsured patients. And that reduction was predicated on treating the new influx of insured, not uninsured people.

And then there are the 5,600 community health centers in the states relying on Healthcare.gov. Even in tight budget conditions, they are required to provide care to patients, regardless of their ability to pay. There is no way they could absorb 9.6 million people losing coverage.

Forgive me for not buying the argument that Congress intentionally put a poison pill in the ACA. The ramifications clearly show otherwise. No rational reading of the ACA can reconcile the opponents’ arguments with the wrecking of insurance markets in more than half of the country, resulting in a massive undoing of coverage expansions.

There is reason to hope that at least five justices will reject this blatant political ploy to destroy the ACA and instead apply settled legal principles and read the statute as a whole. They may be encouraged to do so to avoid a potential constitutional problem created by interpreting the statute as using tax credits to coerce states to create their own marketplaces. However the justices get there, it is an outcome fervently to be desired. 

Five years later, King v. Burwell threatens to take us back to the dark days when the uninsured and sick were out of luck. The only backstop is whether the nine justices rule on the basis of law, instead of politics.

Taylor is the executive director of the National Health Law Program (NHeLP).

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