The U.S. Supreme Court won’t decide the Affordable Care Act’s fate until next year. Last week, however, the court ruled that a Republican attempt to hobble the law was not just misguided, it was illegal.
In their 8-1 ruling, the justices ordered the government to pay health insurers $12 billion they had been promised from a program that lasted from 2014 to 2016, the first three years after the law took effect. That’s when insurers were taking on many new policyholders through the Affordable Care Act exchange.
Companies weren’t sure how to price premiums for these new enrollees, many of whom had preexisting conditions. As Chief Justice John Roberts said during oral arguments last December, many were “otherwise insurable.”
To ensure that companies stayed solvent, the government agreed to share some of that risk. Companies that set plan prices too high would return excess profits. Companies that set prices too low would get compensation.
In late 2013, as the program was about to kick in, Republicans targeted it. One of the most vocal was Florida’s senior senator, Marco Rubio.
A few months earlier, Rubio had reached the high point of his Senate career, having helped to craft comprehensive immigration reform that passed in a strong bipartisan vote of 68-31. Sadly, the Republican-led House refused to schedule even a hearing.
Rubio’s bravery drew backlash from GOP nativists. After the immigration vote on June 27, he pivoted to the Affordable Care Act.
In July and August, he sent out 53 news releases. Thirty-two bashed “Obamacare.”
Rubio focused on that “risk corridor” program for insurers who had underpriced the cost of covering people with preexisting conditions. He called it a “bailout” — red meat for tea party supporters who opposed the 2008 financial bailout and backed Rubio when he ran in 2010.
In November 2013, during the botched rollout of the Affordable Care Act website, Rubio introduced what he called the Obamacare Taxpayer Bailout Prevention Act. It sought to end the risk corridor payments.
Democrats controlled the Senate, so the proposal failed on a stand-alone vote. Other Republicans, however, later attached the ban on insurer payments to a must-pass spending bill.
That provision, though, did not repeal language in the law that the government “shall pay” its obligations under the program. In addition, companies that had set premiums too high still had to make payments.
Insurers that were owed $12 billion sued. On April 27, the justices sided with them. In her majority opinion, Justice Sonia Sotomayor said the case turned on “a principle as old as the nation itself: The government should honor its obligations.”
The ruling didn’t get much coverage. COVID-19 news is crowding out most other topics. More important, the existential Affordable Care Act case still awaits.
That’s the attempt by 18 Republican-led states, including Florida, to repeal the entire law. They argue that when Republicans abolished the law’s individual mandate as part of the 2017 tax bill, the entire law became unconstitutional.
Even conservative legal scholars have criticized that argument. Republicans from President Donald Trump on down also have not offered any replacement.
According to the Urban Institute, repeal without replacement would leave 20 million Americans without health insurance in the middle of a pandemic. Roughly 1.6 million of them live in Florida, which leads the nation in signups through the ACA website.
Florida Attorney General Ashley Moody, who continues to push the lawsuit that began under Trump apostle Pam Bondi, has offered no plan for those Floridians if the court strikes down the law.
If Moody is successful, many more people could also lose their health insurance. The ACA prohibits insurers from denying coverage to people with preexisting conditions. It also allows children to remain on their parents’ policy until age 26, prohibits co-pays for preventive screenings like mammograms and colonoscopies, and much more.
Florida Gov. Ron DeSantis has said only, “We’ll be ready to do what we need to do.” This from the man who can’t get unemployment benefits to Floridians in an existing system.
The Trump administration asked the Supreme Court to delay a ruling on the ACA until next year, after the election. Trump sought that delay even before the pandemic hit, when his gripe was low poll numbers on health care.
In an email to the Sun Sentinel Editorial Board, Rubio’s communications director pointed out that the risk corridor program had been estimated to save $8 billion. The law’s “failure,” he said, “were only made worse by last-minute changes by the Obama Administration, poorly designed rules and regulations that induced insurer losses and emboldened bad actors.”
In reality, insurers badly underestimated the cost of covering those who were “otherwise uninsurable.” The ban on risk-sharing chased many new insurance co-ops out of the exchange, which was the GOP’s goal: hinder the health care law as much as possible.
Trump piled on. He cut money to help spread the word about the annual signup period. His administration approved cheaper policies — offering very few benefits — to compete with those on the exchange.
What Rubio’s aide called a “disastrous law” is more popular than Trump and more popular than ever on its 10th anniversary. It has not reduced costs as hoped, but every credible study shows that it has improved public health and saved lives.
The law would be better still if Republicans had sought to mend it, rather than end it. Since they have proposed no alternative, repeal would be the real disaster.
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