Health Law and Policy Society
In the Senate’s midnight healthcare vote on July 28, 2017, Senators Murkowski (R-AK), Collins (R-ME), and McCain (R-AZ) joined the Democratic caucus in voting against Republicans’ most recent attempt to repeal the Affordable Care Act (“ACA”), commonly known as Obamacare. This latest attempt, known as the “Skinny Repeal,” was a watered-down version of previous repeal bills that would have rolled back the insurance mandates for individuals and large employers, while also eliminating a series of taxes that help fund many ACA programs.
While the Skinny Repeal may seem attractive at first, such a bill could have potentially disastrous effects. Supporters of repeal bills argue that such efforts will stabilize the individual state insurance markets. However, the Skinny Repeal would have had the opposite effect: the lack of an enforceable individual insurance mandate would incentivize many healthy individuals to forego coverage, thereby stripping insurers of essential premium dollars that offset the costs of sicker individuals also insured through their plans. In short, the Skinny Repeal would have caused health insurance premiums to soar.
Obamacare is in no way perfect, as many on both sides of the aisle agree. The problem is that the Republican establishment is intent on a complete repeal-and-replace, and will not consider viable alternatives. This makes a fix politically impossible. So where does healthcare reform go from here?
The first option is one favored by President Trump: pressuring Majority Leader McConnell to change the Senate rules and eliminate the filibuster. This would allow Republicans to pass a repeal bill with just 51 votes in the Senate. However, currently there are not 51 votes to pass such a bill, as evidenced by the three failed repeal votes in the Senate in late July. Furthermore, Senators on both sides of the aisle are in favor of preserving the filibuster.
Another option is bipartisan legislation to stabilize states’ individual insurance marketplaces. In the House, a group of 40 moderate representatives calling themselves the “Problem Solvers Caucus” offer a proposal that would fund cost-sharing subsidies, create a stability fund to help compensate insurers for their customers’ medical costs, repeal the medical device tax, and narrow the employer mandate to businesses with 500 or more employees rather than 50 or more. In the Senate, Republicans still can introduce new amendments to the American Health Care Act of 2017. Committee hearings to explore options for shoring up insurance markets are expected starting in September. However, it seems both efforts are doomed due to leadership moving on to tax reform or digging their heels in for full repeal-and-replace.
While Obamacare is far from imploding, the Trump Administration could still further destabilize it. In fact, it has already started to do so by circulating information regarding Obamacare’s supposed imminent collapse, halting enrollment advertising, and directing the Internal Revenue Service to process tax filings that do not indicate insurance status, which undermines the individual mandate. Additionally the Administration could stop providing upkeep for the federally-facilitated marketplace which runs exchanges for 38 states, severely damaging Obamacare’s infrastructure. The Administration could also drop its pending appeal in House v. Price, an action that would end subsidies to insurers and make coverage largely unaffordable for those who need it most. However, the United States Court of Appeals for the District of Columbia Circuit has allowed 16 state attorney generals to intervene. This means that even if the Trump Administration drops the pending appeal, the states can continue to defend the subsidies.
These are only a few of the many ways in which Trump could try to dismantle the ACA. However, with every county in the country now offering at least one insurance option to its residents through the ACA marketplaces and a looming budget battle that could permanently fund the cost-sharing subsidies at issue in House v. Price, the Trump Administration is running out of both time and options to achieve its healthcare policy goals.