Obamacare Unconstitutional?

Be Careful What You Wish For

Litigation often brings unintended consequences

Republicans have long railed against the Affordable Care Act, better known as Obamacare. Salivating at the chance to be rid of the epitome of socialist government run amok, 22 Attorneys General from republican led states brought suit in Federal Court to have the entire act declared unconstitutional. They most recently pressed their case before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in the deep south. Two of the three judges favorably received the GOP arguments, foreshadowing a favorable decision. Whichever way the appeals court judges rule, the loser will ask the U.S. Supreme Court to take the case. Standing in the way are five of the nine justices who voted to uphold the law in 2012.

Should Obamacare be declared unconstitutional by the Supreme Court, several of its very popular provisions will cease to be in force immediately. Among those would be protection for those 133 million Americans with pre-existing conditions that currently prohibits insurance companies from denying coverage for those maladies. We recall vividly the recent lame-duck session of our own legislature that failed to pass state protection for pre-existing conditions proposed just in case the Obamacare litigation gutted them. 

There are a number of other Obamacare provisions that would be eliminated immediately with a decision that the whole law fails to pass constitutional muster. A recent survey of the law in the New York Times outlines what is at risk.

Obamacare also provides a number of other protections for health insurance consumers including elimination of the caps on the lifetime amounts that could be paid under a policy, elimination of caps on the amount insurers can require for deductibles, prohibitions against charging older customers more than younger ones and prohibitions on dropping more expensive benefits like prescription medication coverages. All would vanish if Obamacare is declared void.

Obamacare provided permanent authorization of the Indian Health Service that provides doctors and hospitals to more that two million Native Americans. 

Obamacare enabled the Food and Drug Administration to consider and approve biosimilar medications. They are like generic versions of biologic medications which cannot be copied as easily as typical drugs. So far twenty-one biosimilar medications have been approved by the FDA. Elimination of Obamacare could jeopardize those approvals and discourage new biologics from coming to market. 

Obamacare created a new office to innovate new methods of paying for healthcare services, such as lump sum payments for hip replacements and courses to lower diabetes risk. Even the Trump administration seized on this one, using it to link Medicare payments for certain drugs to prices from an international index thus lowering costs. Ending Obamacare would eliminate these efforts as well. 

Obamacare changed several Medicare payment formulas, reducing amounts paid to hospitals. Healthcare providers adjusted their practices to accommodate these changes and undoing them would be difficult. The changes extended the life of the Medicare Hospital Trust Fund and their loss would cause Medicare to lose several years of solvency. 

Obamacare requires drug companies to disclose gifts and payments to physicians, exposing bias in prescribing practices. The end of Obamacare eliminates this safeguard. 

Obamacare reduced the “doughnut hole” in Medicare drug plans that enabled the plans to stop paying for seniors’ meds once they reached a certain amount. Eliminating Obamacare makes seniors on fixed incomes liable for much more of the costs for their medications. 

Obamacare included benefits for breastfeeding mothers like insurance coverage for breast pumps and a requirement that employers provide private spaces for mother to express milk. Thousands of employers that have changed policies to accommodate breastfeeding employees could drop these benefits should Obamacare be invalidated. 

Let’s not forget the 21 million Americans who would lose all healthcare coverage if Obamacare is invalidated. 

If recent history is any guide, our GOP dominated legislature could not even pass legislation to protect those with pre-existing conditions. How can we expect it to provide Obamacare protections for these other benefits current law provides?

To top it off, a declaration that Obamacare is unconstitutional will pave the way for passage of “Medicare for All” on the national level. A measure that already commands support from a solid majority of the American voting public.

Be careful what you wish for, very careful.