Healthcare as a Right is an Insurmountable Foe

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Within the last couple of weeks, three noteworthy events occurred related to healthcare provided in our country. 

First, in a lawsuit – Texas v. United States– pending before the Fifth Circuit United States Court of Appeals, the Trump administration wrote in a letter to the court that it “is not urging that any portion of the district court’s judgment be reversed.” This statement, contrary to legislation enacted into law and to positions expressed by members of Trump’s administration, is now the official position put forth in an appeal of a lawsuit multiple state Attorneys General, two governors, and others brought to strike down the ACA or “Obamacare.”  Conservative Texas federal trial judge, Reed O’Connor, ruled the ACA unconstitutional late last year. Several other states and House Democrats oppose the lawsuit and are parties to its appeal. The Trump administration originally took the position that only parts of Obamacare needed to be stricken because the individual mandate was stripped from it by Trump’s 2017 tax law; without it, so it claims, the law could not withstand judicial scrutiny under a 2012 Supreme Court decision authored by Chief Justice Roberts. Given the prerogative of Congress as the legislative branch of government to let stand the ACA that it enacted nine years earlier, and now even when it eliminated the individual mandate, the administration's assertion is not compelling and otherwise dubious.

Legal scholars and experts find O’Connor’s analysis deeply flawed, an “exercise in raw judicial power”, and a “mockery of the rule of law.” However, over a year into the case with it, Trump wants to have the entire law struck down, depriving millions of Americans of essential and preventive healthcare benefits, including mandatory coverage for pre-existing conditions, maternity care, addiction treatment, and mental health care among many others. This is significant since among the states Trump won in 2016, Florida, Pennsylvania, and Michigan have the highest number of enrollees in ACA plans. Similarly, West Virginia, Mississippi, Kentucky, Alabama, and Tennessee have the highest percentage of citizens with pre-existing conditions. 

According to Steve Rattner on Morning Joe, 27% of the U.S. population have pre-existing conditions, with West Virginia having the highest at 36%.

Not counting enrollees through state exchanges provided for through the ACA and Medicaid recipients, there were 9.2 million Americans on ACA federally-run exchanges. For 2019, it is estimated that 11.4 million are enrolled in ACA plans. In total, roughly 21 million are covered through ACA provisions.

Second, Trump has incessantly criticized the late Senator and American war hero, John McCain, for his early morning vote in 2017 to deny the Senate’s efforts to overturn the ACA. Trump has been rebuked for his remarks from both sides of the aisle.

Third, while passing through the halls of Congress last month, Trump stated to a gaggle of media present: “The Republican Party will be known as the party of health care.”

These happenings are part of the panoply of suggestions and positions swirling around what to do with the present state of the nation’s healthcare system: from the left wanting a Medicare-for-all system that eliminates private insurance and that the country cannot afford, to the right wanting less government in our healthcare and the desire to bringing back the public option as I advocated when brought to counsel Congresspeople as it was being developed, to allowing those younger than age 65 to sign up for the present Medicare system. 

Most currently, the House Democratic leadership introduced their own healthcare measure to strengthen the ACA by expanding federal insurance subsidies and reversing the Trump administration’s attacks on the ACA (expanding tax credits; creating a national reinsurance program; and rolling back Trump’s skimpier health insurance plans).

In all, there are six bills to expand the role of public health plans that have been introduced in the current Congress. Another, sponsored by Sens. Bennet and Kaine called “Medicare X” resurrects what was originally part of Obamacare but was never included because it was seen as too progressive and is scheduled for reintroduction this week. Though not legislation and merely symbolic, the House also approved a resolution last Wednesday condemning the Trump administration's attacking the ACA in the Texas case.The GOP has its own proposals, centering around block grants.

But it is Trump’s backing the Texas legal case without compromise that has taken center stage and has turned Republicans – certainly those running for re-election in 2020 – into deer in the headlights when questioned about the administration’s latest ploy. After all, as I wrote over a decade ago before it was in vogue to do so, health care is a right for all of the country’s citizens – as many nations already recognize.

As if in microcosm to the continuation of such a right existing, late last month the Trump administration lost two federal court battles to undermine Obamacare. In one decision, it was ruled to be a deliberate and illegal "end run" around the ACA by Trump's administration expanding the availability of health plans that bypass the ACA's coverage requirements. In the other case, another federal judge threw out the administration's embrace of work requirements for citizens on Medicaid.

Notwithstanding Trump’s promises of coverage for pre-existing conditions and this messaging appearing for Republicans in the 2018 midterms, he now wants to take that Obamacare benefit away. But equally problematic, and as made known by ACA architect and MIT Economics Professor Jonathan Gruber, eliminating coverage for pre-existing conditions would leave 133 million vulnerable for discrimination by insurers. The ACA provided for the expansion of Medicaid in 37 states to serve millions more Americans. And don’t forget the scores of less-known reforms, such as:

  • Medicare compensating health care providers

  • Ensuring that millions of people under 26-years-old can stay on their parents’ policies

  • Providing innovation in the delivery of health care

  • Requiring nutrition labeling and calorie counts in restaurant chains

  • Mandating employers provide “reasonable break time” and a private space for nursing mothers to pump breast milk

  • Improving prescription drug coverage for Medicare beneficiaries

  • Creating a new pathway for the approval of less expensive versions of biologic medicines made from living cells

  • Not allowing health plans to place annual or lifetime limits on benefits

President Trump and his supporters who wanted to do away with the ACA have indeed received pushback, notably from the insurance industry and consumer advocacy groups. It is also curious that some of his base might actually be insured through an ACA exchange or have pre-existing conditions that might consider becoming part of this pushback. Regardless, 55% of the public want ACA to remain but improved without a replacement. Yet, without it remaining the law of the land, affording and accessing health care in the U.S. will be turned upside down and create a catastrophe nationwide for millions, whether insured on an ACA exchange or not.

To highlight this, a week ago, the Republican attorneys general in Ohio and Montana filed a friend-of-the-court brief in the Texas case, asking the appeals court to reverse the lower court's ruling finding the ACA unconstitutional because upholding it would "threaten harm to millions of people in the Buckeye and Treasure states" and otherwise be chaotic to the healthcare system. This is in addition to dozens of health care organizations requesting the same relief. 

And a day later, Trump declared there won't be a vote on any GOP health care plan until after the 2020 election, some nineteen months from now. Translated, Trump hopes the Texas case goes his way, and millions of Americans will be without their healthcare until January 20, 2021. 

However, in the end, all Trump wants to do is win at any cost, in this case denying millions their present healthcare coverage. Without health, none of us are much good to ourselves, our families, our communities, our employers, or even our country. American lives literally hang in the balance.

As for his boasting that the Republican Party will be the party of healthcare, our memories must not forget the members who, countless times, attempted to repeal and replace Obamacare. They not only failed to do so, but they never come up with any alternative that would provide better benefits than what the Affordable Care Act currently offers. 

History must be our judge to determine not only Trump’s truth-telling ability but in the context of his telling us his party will provide an improved replacement for Obamacare.

The watchwords remain, healthcare is a right for all Americans, the very purpose for the Affordable Care Act. Admittedly, it needs improvement and figuring out ways to lower its costs must continue to be a priority. But President Trump’s attempts to derail it completely with his administration’s current position before the appeals court is not only the antithesis of what a nation should do, morally, for its citizens, but his banter on where he and his party stand has forced a match with an insurmountable foe

Insurmountable, that is, unless the nation’s citizenry and our courts turn a blind eye to this type of tomfoolery when it comes to affording and accessing our healthcare.