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Affordable Care Act Under Duress Again

July 18, 2019

It concerns me greatly. I must write again in support of the foundational concept that all Americans should have access to good health insurance. As has happened so many times over the past decade, the Affordable Care Act (ACA) is under vicious attack, despite the fact that it has moved us so very much closer toward this vital goal.

Late last year, Judge Reed O’Connor, a federal judge from the Northern District in Texas, ruled in the Texas vs. Azar case that the ACA is unconstitutional because it no longer has a tax which supports an insurance mandate. Hence, the insurance mandate is unconstitutional, as is the entire law because the law cannot be severed from the mandate. Fortunately, Judge O’Connor stayed the implementation of his decision pending an appeal. Now, the 5th Circuit Court of Appeals in New Orleans is hearing this appeal. Because this appellate court is reputed to be blatantly conservative, we fully expect the original decision to be upheld. This will trigger a further appeal to the US Supreme Court.

We must confront the fundamental question: Why would it be wrong—absolutely wrong—to declare the ACA unconstitutional?

First, numerous legal precedents exist that support the principle of severability. This means that the remainder of the ACA can be severed from the insurance mandate. If so, then the remainder of the ACA is constitutional.

However, clearly, this is not the most important consideration.

Rather, the right to good health is basic and inalienable. Our 1776 Declaration of Independence identifies the inalienable right to life, and our 1787 Constitution seeks to guide a government that promotes the general welfare. Thus, the two bedrock documents that created the United States of America offer support to citizens’ efforts to seek good health and even happiness.

As a practical matter, the ACA was designed specifically to bring health insurance to the poor and near poor through Medicaid and State Health Insurance Marketplaces. Uninsured rates decreased across all income groups from 2013 to 2016. Yet, they fell most sharply for those who are poor and near poor. Racial and ethnic groups, specifically Hispanics, Blacks and Asians, had particularly large decreases in uninsured rates.

These gains have been particularly salutary for persons who suffer from behavioral health conditions. My own analysis shows that uninsured rates in this group decreased from about 31% to 16%—nearly half—between 2014 and 2018.

We also know that more people are receiving care as a result of increased insurance coverage. Today, about 17% of those with substance use conditions actually receive care, compared with less than 10% prior to the ACA. Similarly, many more people are receiving care for mental health conditions.

So what can we do to raise this issue up?

We can draw attention within our own social groups to the essential nature of the ACA—among family members, among friends, in our workplaces, in our churches and synagogues. Public sentiment does play a quiet role in court decisions.

We can support the candidacies of politicians for congressional office who support the ACA and oppose those who do not. Under either court outcome, Congress will need to take additional steps to bolster the ACA.

We can join Amicus Briefs that support the ACA. The court needs to hear from us how the ACA has saved lives, prevented bankruptcies and promoted recovery. Many thousands of compelling stories are waiting to be told. To do so is vital.

Finally, don’t lose heart. Our founders, those who support social justice, and those who have empathy are fully with us. Justice can and does prevail.

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