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ACA Repeal Bills Would Do Much the Same Damage as Judge’s Decision to Strike Down the Law

December 17, 2018 at 1:30 PM

President Trump and some congressional Republicans are portraying federal Judge Reed O’Connor’s ruling striking down the Affordable Care Act (ACA) as an opportunity to return to last year’s ACA “repeal and replace” proposals, which they argue could solve the problems the ruling would create if allowed to stand. Fortunately, Judge O’Connor’s ruling does not alter health care for now; even the White House acknowledges that the ACA remains the law of the land pending certain appeal. Moreover, as legal experts with opposing views on the ACA have explained, the legal reasoning behind the decision is extraordinarily weak, leading even committed opponents of the ACA to predict it will be overturned. But last year’s bills would have had much the same devastating consequences as the decision itself, and the responses to the ruling are a reminder that the Administration and many congressional Republicans still support these outcomes as a matter of policy.

Like Judge O’Connor’s decision, last year’s repeal bills would:

  • End nationwide pre-existing conditions protections. As we’ve explained, both the House-passed ACA repeal bill and the proposal that the White House continues to press — legislation introduced by Senators Bill Cassidy, Lindsey Graham, Ron Johnson, and Dean Heller (“Cassidy-Graham”) — would have let insurers return to charging higher premiums based on pre-existing conditions, ending the ACA’s nationwide ban on that practice. That’s why patient groups, physicians, hospitals, insurers, experts, other stakeholders, and independent fact checkers (for example, here, here, and here) concluded that these bills would have restored discrimination based on pre-existing conditions.
  • End other critical consumer protections, including for people with employer coverage. Both bills cited above (and other legislation that the Senate considered) also would have let health plans return to excluding essential health benefits, such as maternity coverage, mental health care, and substance use treatment — which many plans excluded before the ACA. The House-passed bill (and other legislation the Senate considered) would also have allowed the return of annual and lifetime limits on coverage in employer plans.
  • End the ACA’s Medicaid expansion. The House-passed repeal bill (and other legislation the Senate considered) would have ended the ACA’s enhanced funding for Medicaid expansion to low-income adults, effectively ending the expansion. The Cassidy-Graham bill would have ended the expansion outright, replacing it with a temporary, underfunded, and structurally flawed block grant to states.
  • End or sharply cut financial assistance for individual market consumers. The Cassidy-Graham bill would end federal financial assistance (premium tax credits and cost-sharing subsidies) altogether, replacing it, too, with a temporary, underfunded, and structurally flawed block grant to states. The House-passed repeal bill (and other legislation the Senate considered) would have slashed financial assistance for moderate-income consumers, with the House bill increasing out-of-pocket costs for the average HealthCare.gov consumer by $3,600.
  • Cause millions of people to lose coverage. If Judge O’Connor’s ruling took effect, the number of non-elderly Americans without health insurance would rise from about 34 million under current law to 51 million, the Urban Institute estimates. The repeal and replace bills considered last year would have left about 50 million Americans uninsured, according to Congressional Budget Office and other independent estimates.
  • Destabilize health care markets. If implemented, Judge O’Connor’s ruling would throw much of the health care system into chaos. But the House-passed repeal bill could also have destabilized the individual market for health insurance in some states. Meanwhile, the Cassidy-Graham legislation would “severely disrupt states’ individual insurance markets, with sharp premium increases and insurer exits likely to occur in the short term and over time,” according to 36 current and former insurance commissioners of both parties.
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