Author: Brian Davis

Friday night’s ruling by a federal district judge in Texas v. Azar that the Affordable Care Act (ACA) is unconstitutional has created fresh uncertainty in the U.S. health care system. While the ruling does not immediately impact the health law itself, it could potentially upend the American health care system in significant ways.

Members of Congress on both sides of the aisle immediately vowed to take steps that would retain the ACA’s protections for patients with pre-existing conditions and Essential Health Benefits (EHB) while the case continues to make its way through the legal system (experts widely believe that Friday’s decision will be appealed to the Fifth Circuit Court of Appeals and could ultimately reach the Supreme Court).

ANA’s official statement noted that “This ruling puts at risk access to quality, affordable, and accessible health care for the millions of Americans whose lives have improved due to the coverage expansions and consumer protections under the ACA.”

Incoming Senate Finance Committee Chairman Chuck Grassley (R-IA) promised on Twitter that his committee would hold hearings on the ruling, and that he would work with Democrats to “strengthen” the ACA through legislation, while Sen. Susan Collins (R-ME) said she was sure the ruling would be overturned and that “There is widespread support for protecting people with preexisting conditions.”

Senate Minority Leader Chuck Schumer (D-NY) vowed to press for a vote on the Senate floor “urging an intervention in the case,” and House Minority Leader Nancy Pelosi (D-CA), widely expected to lead Democrats as Speaker in the 116^th Congress, pledged to “move swiftly to formally intervene in the appeals process.”

President Trump indicated via Twitter that a potential Supreme Court ruling that upheld Friday’s decision would offer an opportunity to work in a bipartisan fashion “to deliver great health care.” He called on lawmakers to formulate and pass a replacement for the ACA, despite the limited success of previous efforts to do so.

Seema Verma, Administrator of the Centers for Medicare & Medicaid Services (CMS), was quick to clarify via social media that the ruling would not adversely impact consumers who were still shopping for individual health insurance coverage during the Open Enrollment period that ended on Saturday, December 15^th. In a formal statement, the Department of Health and Human Services (HHS) echoed this point, noting that “This decision does not require that HHS make any changes to any of the ACA programs it administers or its enforcement of any portion of the ACA at this time.”

The Texas v. Azar lawsuit was brought following the congressional repeal of the individual mandate in December 2017 as part of the Tax Cuts and Jobs Act. The Texas Attorney General, along with AGs in 19 other states, argued that this repeal eliminated the Supreme Court’s rationale for finding the individual mandate constitutional in the 2012 Supreme Court decision NFIB v. Sebelius. Though driven by these states, the focus will now shift to Congress, following an election cycle in which support for major provisions of the Affordable Care Act and health care in general were key campaign issues.

An extraordinary 114 million voters cast ballots Tuesday and delivered the House of Representatives back into the hands of the Democratic party, while voters in more conservative states chose to oust several Democratic incumbents to ensure that the Senate remains under Republican control for the 116th Congress. While some races have yet to be called, turnout was the highest it’s ever been for a midterm election, and the outcomes ensure that lawmakers will have to find a way to reach bipartisan consensus to achieve any meaningful health policy outcomes before the next national election in 2020.

In the Illinois 14^th congressional district, registered nurse Lauren Underwood successfully unseated her incumbent opponent, ensuring that the 116^th Congress will benefit from the perspective and insights of a member of America’s most trusted profession. Endorsed by ANA-PAC, Underwood focused her campaign messaging on the need to improve health policy and is likely to make it a major component of her agenda once in office.

Similarly, Democratic candidates across the country put health care at the center of their campaigns, and the new House majority is widely expected to tackle issues like market stabilization once the 116th Congress convenes, as well as other measures to shore up the Affordable Care Act (ACA). As with all issues in the new Congress, getting a bill on the President’s desk for signature will require bipartisan cooperation with Sen. Mitch McConnell (R-KY) and his now expanded majority.

Despite uncertainty around how fruitful any such cooperation might be, divided control of Congress ensures that any subsequent attempts to repeal and/or replace additional elements of the ACA will be dead on arrival, particularly given the prominence of protecting patients with pre-existing conditions in Democratic campaign messaging. House Democrats will also likely consider legislation to bring back the ACA’s mandate that individuals attain health coverage, which was eliminated in the tax package congressional Republicans passed late last year.

While more progressive candidates tended to focus on the need for a single-payer health care system, most commonly referred to as Medicare for All, this approach will be a non-starter in the Republican Senate, increasing the likelihood that more incremental reforms will be the focus on Capitol Hill. Despite this, single-payer proponents will continue to push both incumbent lawmakers and those who challenge them on the left to embrace Medicare for All, in the hopes of eventually electing a Congress that can pass it.

In post-election press conferences, both President Donald Trump and current Democratic Minority Leader Nancy Pelosi (who is widely expected to attempt to regain the title Speaker of the House) indicated that they would seek to find common ground on a number of issues, including legislation that would reduce prescription drug costs, though details on how to accomplish this shared goal are unclear.

On the ballot initiative front, three states voted to do what their governors and state lawmakers had so far refused to do: expand access to Medicaid. Voters in Idaho, Nebraska, and Utah all approved measures to allow adults and their families to receive coverage via this federal program. States will now be required to submit a State Plan Amendment that outlines how they will implement these programs, with deadlines arriving either in early March or April of next year, depending on the state. Other states that have held off on Medicaid expansion are likely to consider similar initiatives going forward.

Two weeks ahead of Election Day, health care continues to dominate campaign-related headlines and the attention of voters across the country, with one recent poll finding that 71% of Americans describe health care as “very important” in helping them decide how they’ll vote this year.

Senate Majority Leader Mitch McConnell (R-KY) recently gave an interview in which he described his caucus’s failure to repeal and replace the Affordable Care Act (ACA) as a major “disappointment,” and indicated that they would make another attempt to do so should Republicans hold their majority in the Senate (it’s likely the House would follow suit if it, too, remained under Republican control).

It was unclear if McConnell’s comment that he and his colleagues are “not satisfied with the way Obamacare is working” meant that they would be willing to reconsider legislative steps to stabilize the individual insurance marketplace, an idea that is more likely to garner bipartisan support. Previous Senate attempts to repeal and replace the ACA have garnered support from most – but not all – Republicans.

The majority leader also claimed that “Entitlements are the long-term drivers of the debt,” referring to Medicaid, Medicare, and Social Security. Passing legislation that reduces spending on such programs would be politically treacherous and is not a talking point that Republican candidates in more moderate districts and states seem eager to include in their campaign messaging.

In House races, protections for patients with pre-existing conditions have taken on increased importance, with candidates from both sides of the aisle insisting to voters that they consider those protections sacred. This is a tougher sell for Republicans who voted in favor of the American Health Care Act, which would have hobbled those protections as implemented by the ACA.

Many Democratic candidates, in addition to supporting ACA stabilization, are also calling for a system that helps even more uninsured Americans get access to health coverage. While only some have embraced a version of a single-payer system (most commonly referred to as Medicare for All), President Trump recently published an opinion piece in USA Today in which he claimed that such a system “would mean the end of choice for seniors over their own health care decisions.” The piece was widely criticized for containing factual errors, and polls continue to find that a majority of voters – including Republicans – support a single-payer system in some form.

As congressional campaigns race to the finish line, this year’s Open Enrollment period kicks off on November 1, with the Trump administration continuing to approve waivers to states that want  their residents health coverage that falls short of the requirements implemented by the ACA. While not tied to a specific piece of federal legislation, these efforts would be more sharply questioned by a Democratic-controlled House or Senate, with the possibility of legislation being passed that aims to stop them. This dynamic also underscores the importance of supporting candidates at the state level who want to ensure that patients have access to meaningful, comprehensive health insurance.

As you review the issues and the candidates running in your congressional district and state, ANA-PAC recently finalized its list of congressional endorsements for the 2018 election cycle, supporting candidates from both parties who are committed to advancing the nursing profession and ensuring that nurses have substantive input when lawmakers are crafting health policy. To find your polling place, request an absentee ballot, or find out how to vote early, please visit our #NursesVote Action Center and make certain that your voice is heard on this pivotal Election Day.