How Judge Barrett’s Confirmation Might Bring On Medicare for All

Last spring, the big healthcare debate between the Democratic candidates for the Presidential nomination was whether we should build on the Affordable Care Act (with a public option, natch) or go straight to Medicare for All.

Now, with President Trump’s nomination of Appeals Court Judge Amy Coney Barrett to the Supreme Court, the terms of the debate may change. If Barrett is confirmed and seated by Nov. 10, when the High Court is scheduled to hear oral arguments in Texas v. United States, she could deliver the fifth vote needed to throw out the Affordable Care Act in its entirety.

Barrett has previously criticized the 2012 decision of Chief Justice John Roberts, in which he provided the decisive vote against a suit that sought to overturn the ACA on the grounds that the individual mandate to buy insurance was unconstitutional. In 2015, Roberts again voted with the four liberal justices to defeat another conservative assault on the law. 

The current suit against the ACA, in which the Trump Justice Department has joined, would eliminate the statute on the basis of a novel legal theory. The plaintiffs, including a batch of Republican-led states, claim that because the 2017 tax cut act zeroed out the individual mandate, the entire law now violates the Constitution.

Joe Biden and Senate Democrats are using this threat to the Affordable Care Act as a club to bludgeon Barrett’s nomination. However, the Republican Senators under Majority Leader Mitch McConnell will almost certainly confirm her before Election Day.

Much has already been written about what the demise of the Affordable Care Act would mean. Among other things, it would take health insurance away from over 20 million people, including 12 million now on Medicaid; allow insurance companies to exclude the 54 million people with preexisting conditions that made them uninsurable prior to the ACA;  abolish the essential benefits the ACA requires all health plans to include; permit lifetime caps on health benefits; and make it optional for plans to cover children through their parents’ plans until they’re 26.

These changes in federal health insurance policies don’t include any of the government programs that the ACA authorized to improve healthcare delivery and reduce Medicare costs. For example, the Medicare Shared Savings Program, the mainstay for 500 plus accountable care organizations, would cease to exist.

If Biden is elected President in November, he will not be able to stop this destruction of a law that has demonstrably improved U.S. healthcare over the past decade. The Supreme Court is expected to deliver its opinion in June at the latest; if the court rules in favor of the plaintiffs, the ACA will cease to be the law of the land.

So then what? Matthew Holt, the publisher of The Health Care Blog, offered an original take on the current controversy when he proposed that, if elected, Biden threaten to enact Medicare for All if the Republicans press ahead with Barrett’s nomination. This will be moot, of course, if the Senate confirms her before the election. However, Holt’s thought exercise suggests what might happen if the ACA is struck down.

Let’s start with the fact that the coronavirus pandemic is likely to last through most of next year. Therefore, the Supreme Court’s decision is slated to arrive in the midst of a continuing public health crisis. If the ACA is destroyed, the public is unlikely to forget that, especially if insurers begin to define COVID-19 as a preexisting condition for anyone who’s had it.

The cost of health insurance won’t increase as much as expected in 2021, because bans on elective surgery and public avoidance of healthcare settings have decreased the utilization of services. But as I explained in a recent post on THCB, this will change as more and more people seek care for their chronic conditions and obtain unavoidable surgery. We should also not forget about the considerable costs of treating COVID-19, which will continue to rise until the pandemic is properly addressed and a safe, effective vaccine is widely available.

These factors will inevitably lead to much higher insurance premiums over time. Some employers may drop coverage of their workers, especially if they don’t have to pay an ACA-mandated fine as a result. In addition to those coverage losses, up to 10 million people are expected to lose their employer-sponsored insurance–along with their jobs–because of the pandemic. Add in the 20 million folks who will no longer be covered because of the ACA’s Medicaid expansion and subsidies for buying individual coverage, and we have the ingredients for a serious crisis in healthcare access. 

The majority of Americans already support Medicare for All. The number in favor drops when people are informed that their taxes will go up and they will no longer be able to get health insurance through their employers. However, if 50 million or more Americans suddenly found themselves unable to afford healthcare, I suspect that the objections to Medicare for All would seem less compelling than in the past.

At that point, would President Biden actually announce that his Administration supports a single payer system? To even consider it, of course, Democrats would need majorities in the House and Senate—which at this point seem very attainable. In addition, the Senate would have to eliminate the filibuster so that it couldn’t be used to kill a Medicare for All bill. 

For argument’s sake, let’s say that we had a Democratic Congress and no filibuster. Of course, the insurance companies would move heaven and earth to stop Medicare for All. But it’s hard to see how they could derail single-payer legislation if the vast majority of Americans wanted it, and if the representatives of that majority were in power. Even if Congress passed a new version of Obamacare with a more robust public option than Biden has favored up to now, that would probably lead to Medicare for All within a few years.

However, there are two drawbacks to this scenario: First, during the interregnum between the destruction of the ACA and the establishment of Medicare for All, a lot of people would be hurt. And second, a single-payer system by itself would not solve our main problem, which is spiraling costs. To contain costs, we’d have to restructure healthcare delivery, as well.

On balance, regarding not only healthcare but many other things, it would be better for Americans if Barrett isn’t confirmed to the Supreme Court, either now or later. But if she does become a justice and helps overturn the ACA, she may actually accelerate healthcare reform.

Ken Terry is a journalist and author who has covered health care for more than 25 years. His latest bookPhysician-Led Health Care Reform: A New Approach to Medicare for All, was recently published by the American Association for Physician Leadership.

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