TALLAHASSEE — If the election goes one way, your health care will be taken away. If the election goes another, President Donald Trump will unveil an alternative that’s so great, you wouldn’t believe it.
That is the state of the rhetoric around health care as we approach Nov. 3.
Few states would be more affected than Florida by the demise of the Patient Protection and Affordable Care Act, also known as Obamacare. The Trump administration is currently arguing before the Supreme Court that the entire law should be terminated.
By now, the arguments on both sides are well known. Here are five things to keep in mind as you think about health care this election season.
1. Millions of Floridians get insurance through the law
The architects of the Affordable Care Act wanted to accomplish at least two major things: cover people who couldn’t afford unsubsidized health insurance but made too much money to qualify for Medicaid; and ban insurance companies from discriminating against patients with pre-existing conditions.
Health care is expensive, so patients in poor health traditionally pay more for insurance. In order to drive down costs for everyone — but especially for those sick patients — the Affordable Care Act required that most every American, even healthy people, had to buy health insurance.
Americans who make up to a certain amount determined by a government formula can qualify for a subsidy to help them afford care on the open market. (In 2019, for example, a family of four with an income of up to $103,000 was eligible for some federal help with health care.) If a person chose not to buy health insurance, they had to pay a penalty of a few hundred dollars per year. This is often called the “individual mandate.”
The law also expanded who qualified for Medicaid. However, in 2012, the Supreme Court ruled that Medicaid expansion would only happen in states that agreed to take advantage of that provision. Florida has not. So although nearly 2 million Floridians signed up for health care in the federal insurance marketplace created by the law in 2019, some 800,000 more remain uninsured because the state has not expanded Medicaid.
2. Florida would look different if Obamacare disappeared tomorrow
The Affordable Care Act has been on the books for a decade. In ways large and small, Florida’s sprawling health care industry has adapted to the law.
If the Supreme Court strikes it down, “it’s hard to overstate the consequences, not just for people’s health care coverage, but for the health care system as a whole,” said Sabrina Corlette, the co-director of Georgetown University’s Center on Health Insurance Reforms.
Republicans have long argued Obamacare is bad policy. The regulations in the Affordable Care Act, they argue, make plans sold in the state and federal marketplaces too costly, especially for middle-class families.
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Still, if the law were to go away, many of the hundreds of thousands of Floridians on subsidized health care plans would be immediately unable to afford them, Corlette said. Insurers could once again sell health care plans with all sorts of caveats that are largely forbidden under current law. They could make large coverage exceptions for certain conditions, or impose lifetime payment caps, the professor said. Children would no longer be covered automatically by a parent’s health insurance plan until age 26. The list of major policy changes is a long one.
3. The Supreme Court could very well strike down the law. However...
The federal government’s case against Obamacare is pretty thin, some legal experts say. In 2012, the Court ruled the Affordable Care Act was constitutional because the individual mandate fell under Congress' power to tax. In 2017, as a part of Trump’s signature tax bill, Congress eliminated the penalty for not buying health insurance.
But in making that change, Congress left the individual mandate on the books even while reducing the mandate’s penalty to nothing.
That distinction led Texas, along with more than a dozen other states, including Florida, to sue in federal court to have Obamacare struck down once and for all. Attorneys for the states argued the $0 tax was not a tax at all, and therefore, it’s unconstitutional. They also argued the illegal tax was crucial to the law as a whole, which meant the entire law had to be struck down.
If the Supreme Court were to wipe Obamacare off the books entirely, five justices would have to agree that not only is the $0 mandate unconstitutional, but that the mandate cannot be severed from the rest of the law.
Four justices, the court’s three liberals and Chief Justice John Roberts, are unlikely to be persuaded by the argument that the mandate can’t be severed from the rest of the law, said Louis Virelli, a professor of law at Stetson University College of Law.
A fifth, Justice Brett Kavanaugh, wrote in a Supreme Court opinion earlier this year that “the Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”
It would seem that five justices are already skeptical of the states' case. Even if the mandate is found to be unconstitutional, the rest of the law could stand.
Florida Attorney General Ashley Moody has signed her state onto the effort to have Obamacare struck down in the courts. A spokeswoman from her office said, “Our office is party to this litigation and it would not be appropriate to discuss the ongoing proceedings.”
4. Democrats could make the Supreme Court case a non-issue after November
That Kavanaugh could be the deciding vote in determining whether millions lose their existing health care probably isn’t comforting to supporters of the law.
If Democrats take control of the U.S. Senate and win the presidency, however, they can easily render the case moot before the Supreme Court by tweaking the existing law.
Trump’s promised a health care plan that will work better for consumers while protecting those with pre-existing conditions. His reelection could lead him to unveil what that plan is. But Trump’s been promising to deliver such a plan for his entire first term. Thus far, he’s yet to offer specifics. In 2017, a Republican-led effort to partially repeal and replace Obamacare with a plan that would have covered millions fewer people failed to pass in the Senate.
Mona Mangat, a doctor at St. Petersburg’s Bay Area Allergy and Asthma, has long been a supporter of the Affordable Care Act. She said if Republicans had come up with a popular alternative to Obamacare, they’d have offered it by now.
“It’s clear the Republicans don’t have an adequate replacement or solution,” Mangat said.
5. Florida has a law that mandates coverage of pre-existing conditions. Sort of.
Wilton Simpson, the incoming president of the Florida Senate, noted that Florida passed a law in 2019 that required insurance companies to offer customers at least one plan that allows for coverage of pre-existing conditions. That part of the law would take effect if Obamacare is repealed or struck down in courts.
“With all the court cases going on I didn’t want to take any chances,” Simpson said in a text message. “I did the bill to make sure Floridians don’t have to worry about it.”
But Corlette said such a state law likely still wouldn’t allow as many sick people to afford health insurance. Many Floridians would still lose the subsidies that allow them to pay for their current plans.
Insurance companies might also find ways to work around the pre-existing condition requirement, Corlette said. For example, the Affordable Care Act banned companies from putting hard caps on the cost of coverage for certain conditions. Even a policy that allows a pre-existing condition to be covered could come with this kind of nasty fine print, Corlette said.
Even if Floridians with pre-existing conditions could still afford their coverage in a post-Obamacare world, the disappearance of the Affordable Care Act would mean more uncertainty about health care during a pandemic.
“It’s kind of hard to overstate how confusing or chaotic this would be,” Corlette said.