On June 25, as the U.S. passed the grim milestone of 125,000 deaths from the coronavirus pandemic, the Trump administration urged the Supreme Court in a late-night court filing to overturn the Affordable Care Act (ACA). If the law were overturned, about 23 million Americans would lose their health insurance.
The legal brief made no mention of the coronavirus.
Earlier that day, the government’s Centers for Medicare and Medicaid Services had reported that about 487,000 people who had lost their health insurance due to layoffs in the economic shutdown have been able to access insurance coverage through HealthCare.gov, which is provided through the ACA. That number represents an increase of 46 percent from the same period in 2019.
The ACA, commonly referred to as Obamacare, was passed by Congress in 2010 and is the most pivotal healthcare legislation since the passage of Medicare and Medicaid in 1965. A law governing health insurance providers, the ACA also expands Medicaid in many states and provides a network for Americans not insured in the workplace to buy insurance plans through their local providers via HealthCare.gov. The ACA also allows dependent children up to age 26 coverage under a parent’s plan, which has meant college students who often have no coverage can have health insurance. The ACA also offers tax subsidies to most people with incomes under $100,000 to help with purchasing insurance.
The ACA has been especially beneficial for LGBTQ people, offering people at risk for and/or living with HIV/AIDS better access to healthcare coverage and more health insurance options. It has also expanded access to care for trans people who were extremely limited in accessing affordable coverage or Medicaid prior to the law.
Thomas Ude Jr, Esq., Legal and Public Policy Director at Mazzoni Center, told PGN, “In the middle of this pandemic, the Trump administration remains hell-bent on attacking, instead of promoting, good medicine and good health. The administration wants to eliminate the Affordable Care Act in its entirety — stripping insurance coverage from more than 23 million people, and eliminating the only federal law barring sex discrimination in healthcare.”
The Trump administration argued in their legal brief that the tax bill passed by the then-Republican-led Congress in December 2017 rendered the ACA invalid. That legislation ended the ACA mandate that required all Americans to either buy health insurance or pay a tax penalty.
If the health insurance requirement is invalidated, “then it necessarily follows that the rest of the ACA must also fall,” Solicitor General Noel Francisco wrote in the brief. Francisco also previously argued for the Trump administration against Aimee Stephens, et al in the recent Bostock employment discrimination case.
Speaker of the House Nancy Pelosi tweeted her outrage at the move a few minutes before midnight, calling the action “an unfathomable cruelty.”
She wrote, “In the dead of night, the Trump Administration has once again asked the Supreme Court to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis.”
On June 26, White House spokesman Judd Deere said in a statement that the ACA — which has given tens of millions of previously uninsured people health insurance — was “an unlawful failure.”
As Ude noted, an estimated 23 million Americans would lose their health insurance immediately if the ACA were overturned. In addition, one of the key mandates of the ACA — that people with pre-existing conditions never be denied coverage — would also fall, allowing health insurance companies to return to the pre-ACA standard of denying coverage.
Ending this provision would have a huge impact on people with HIV/AIDS. Well-documented health disparities for LGBTQ people in areas of physical and behavioral health means they are also at higher risk for pre-existing conditions and have worse health outcomes than their cishet peers.
Ude said, “The U.S. Supreme Court’s recent ruling in Bostock v. Clayton County, GA, strengthened and clarified the ACA’s nondiscrimination protections, but even with the ACA, many LGBTQ+ people are unable to get the healthcare they need because of discrimination. Striking down the entire ACA would put LGBTQ+ people at even greater risk by inviting health care providers and insurance carriers to deny treatment or coverage to people because they are LGBTQ+.”
He added that “Such denials would almost certainly violate Pennsylvania’s Human Relations Act, which protects against discrimination based on sex (including anti-LGBTQ+ discrimination). But until we have definitive guidance saying so, uncertainty and confusion will mean that some providers will deny people urgently-needed health care. And that’s bad for all of our communities.”
According to the Centers for Disease Control and Prevention (CDC), 131 million Americans have one or more chronic illnesses, such as asthma, diabetes, heart disease and HIV/AIDS. All of those people would be impacted by the Trump plan.
In a live interview on June 28, Health and Human Service (HHS) Secretary Alex Azar was asked by CNN’s Jake Tapper if it was “unconscionable” to take health insurance away from people during a pandemic.
Azar said that any replacement plan devised by the administration will protect people with pre-existing health conditions. No such plan exists at this time.
In legal arguments, the Trump administration has always supported ending ACA provisions that prohibit insurance companies from discriminating against people due to their medical history.
On June 19 the Trump administration rolled back Section 1557 of the ACA which prevents discrimination in healthcare on the basis of race, color, national origin, sex, age, or disability. In 2016 the Obama administration expanded that anti-discrimination clause to include protections for LGBT people. A coalition of physicians and LGBTQ advocacy groups are suing the administration. Adrian Shanker, executive director of the Bradbury-Sullivan LGBT Community Center, the only Pennsylvania-based plaintiff in the lawsuit, told PGN “We are suing on behalf of LGBTQ communities across the country. This is essential for the LGBTQ community’s ability to access care. We wish we had a federal administration that instead of removing access to healthcare would be working to extend healthcare for all people, including LGBTQ people.”
The case against the ACA will be heard at the beginning of the new Supreme Court term, about a month before the election.