With just two weeks to go before the November 3 elections, Democrats continue to declare at every opportunity that they are fighting to prevent the Patient Protection and Affordable Care Act (ACA), or Obamacare, from being declared unconstitutional by the Supreme Court.  They claim that President Trump and his fellow Republicans want to deny healthcare to millions of Americans, especially those with pre-existing conditions.

Nothing could be further from the truth. 

First, the entire argument is ironic, if not laughable, because Democrats have admitted that Obamacare did not work as promised and want to replace it with Medicare for All.  In the process of implementing their big-government health plan, private insurance will be taken away from more than 220 million Americans.

Sen. Bernie Sanders’ (I-Vt.) has introduced, S. 1129, the “Medicare for All Act of 2019,” with 14 cosponsors, which represents one-third of the Democratic caucus, including former presidential contenders and the current vice-president nominee, Sen. Kamala Harris (D-Calif.)  The House version of the legislation, H.R. 1384, introduced by Rep. Pramila Japal (D-Wash.), has 118 cosponsors, or half of the Democratic caucus.

Second, the Democrats are using as a cudgel to frighten people about the Supreme Court’s consideration of California v. Texas (formally known as Texas v. the United States) on November 10, 2020.  This case has been winding its way through the lower courts since February 2018 and it is one of the reasons there is such a kerfuffle over President Trump’s nomination of Judge Amy Coney Barrett to fill Justice Ruth Bader Ginsburg’s seat.  Judge Barrett is an originalist in her judicial philosophy toward the interpretation of the Constitution and was critical of Chief Justice John Robert’s contorted 2012 decision upholding Obamacare’s constitutionality.

The Kaiser Family Foundation’s overview of the case stated that there are four legal questions the Court will consider.  If the Court determines that Texas and the plaintiffs have standing to challenge the individual mandate, the Court will then decide if the 2017 Tax Cuts and Jobs Act, which set the shared responsibility tax to zero dollars for those that refuse to purchase health insurance, makes the individual mandate unconstitutional.  If the Court determines the mandate is unconstitutional, then it will decide if the rest of ACA is unconstitutional or the mandate is severable, which would leave the remaining provisions of the law in force.  If the Court determines all of ACA is invalid, it will determine whether it is “unenforceable nationwide or whether it should be unenforceable only to the extent that provisions injure the individual plaintiffs.”  The decision could be issued as late as June 2021.

Many legal scholars agree that it is likely a majority of the Supreme Court, as noted in National Review and Reason articles, would support severability and uphold ACA, even if a majority agreed on the narrower issue that the individual mandate is unconstitutional.  In response to a question by Sen. Dianne Feinstein (D-Calif.) during her confirmation hearing, Judge Barrett said,  “I think the doctrine of severability as it’s been described by the court serves a valuable function of trying not to undo your work when you wouldn’t want a court to undo your work. Severability strives to look at a statute as a whole and say, would Congress have considered this provision so vital that kind of in the Jenga game pulling it out, Congress wouldn’t want the statute anymore?  So it’s designed to effectuate your intent.  But severability is designed to say, well, would Congress still want the statute to stand even with this provision gone?  Would Congress still pass the same statute without it?  So I think insofar as it tries to effectuate with Congress would have wanted, it’s the court and Congress working hand in hand.”

The individual mandate has been toothless since January 1, 2019, when the penalty was reduced to zero dollars, and people with pre-existing conditions are still covered.  Therefore, it is not out the realm of possibility to believe that the Supreme Court could declare the mandate unconstitutional and no one would know the difference.

Even if a majority of the Court should agree that if the mandate is unconstitutional and the entire law must there be declared unconstitutional, the ruling would be delayed, giving Congress and the states time to fix the situation.  People would not lose their health insurance overnight.

Finally, contrary to the popular narrative, Republicans agree that people with pre-existing conditions should be protected.  President Trump signed an executive order on September 24, 2020 stating that, “It has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.”  His administration began this process in March 2017 by reaching out to governors, encouraging them to utilize Section 1332 of ACA to implement high-risk pools/state operated reinsurance programs that would help to “lower premiums for consumers, improve market stability, and increase consumer choice.”

Since then, 12 states have worked with the administration to implement state-based reinsurance programs and as a result have succeeded in stabilizing their insurance markets while protecting citizens with pre-existing conditions.  Prior to these waivers, Centers for Medicare and Medicaid Administrator Seem Verma noted that people with pre-existing conditions, especially those that do not qualify for ACA subsidies, were facing high, and in many cases, unaffordable premium costs.  Thanks to these waivers, citizens in these states are seeing lower premiums.  For example, in the first year after implementing the waiver, Alaska saw up to a 20 percent average premium reduction, Maryland saw a 30 percent reduction, and Oregon saw an 8 percent reduction.

There are also at least two conservative, free-market reforms to ACA that would continue to protect people with pre-existing conditions.  The House Republican Study Committee has released “The RSC Health Care Plan: A Framework for Personalized, Affordable Care,” that would “protect vulnerable Americans – including those with pre-existing conditions, chronic illness, and serious health issues – while reducing premiums, deductibles, and overall health care costs.”  The other plan is the “Health Care Choices 2020,” proposal which has the attention of Republican senators.  It moves power and control away from Washington, protects those with pre-existing conditions, and empowers individuals to take charge of their healthcare decisions. 

Using the ideas formulated in these plans, Congress could use the 10-year projected ACA funding of approximately $1.8 trillion more wisely to help states reform and stabilize their markets and design effective safety net programs for their citizens, similar to the results shown in the Section 1332 waivers.  Congress could also give more purchasing power to individuals, especially the impoverished, so they can get the health plan they want, while also allowing states to change and improve Medicaid, which is bankrupting states and providing subpar care.

Whatever the Supreme Court decides, the ACA desperately needs reform.  During that process, those with pre-existing conditions will undoubtedly be protected.  Anything else is a red herring by Democrats, perhaps part of their plan to take attention away from their true objective of enacting Medicare for All.