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Health Care on the Ballot as America Votes

Health care is playing an outsized role as the 2020 election is underway and the Senate is poised to install a 6-3 conservative majority days before the U.S. Supreme Court hears arguments about the Constitutionality of the Affordable Care Act (ACA).

President Trump and former Vice President Biden face off on November 3rd but the election is already well underway.  At the time of this writing, early 18 million people have already voted in states that permit early voting.  Turnout is expected to break records.  One of the dominant campaign themes has been health care including the national response to the pandemic and the threat to health care access through challenges to the Affordable Care Act.

The Biden Campaign offers extensive detail on health care policy, including reducing the age to 60 (from 65) for individuals eligible to join the Medicare program, establishment of a “public option” for the uninsured to obtain health insurance in order to drive down the cost of health care while enhancing access, bolstering existing aspects of the ACA, reducing the cost of prescription drugs, and coordination of a national plan to combat the pandemic.

The Trump Campaign did not issue a policy platform this year so details of what a second Trump term would mean for health care policy is not entirely clear.  But it is likely the next four years would include continued efforts to reduce the price of prescription drugs, limit “surprise” medical bills, provide greater transparency in health care pricing, and implement additional reductions in regulatory burdens on health care providers.  Although the President professes strong support for protecting people with pre-existing conditions, his Administration is poised to argue before the Supreme Court that the ACA is invalid and should be entirely struck down.

An accelerated effort to replace Justice Ruth Bader Ginsburg with Judge Amy Coney Barrett is being driven, in part, by a desire to fill this court vacancy before the election and have a full court in place to hear the latest legal challenge to the ACA.  A lower Texas court determined that the ACA is invalid because Congress eliminated the monetary penalty for failure to satisfy the individual insurance mandate that is critical to achieving near universal coverage, which accompanies protections from pre-existing conditions, community rating, non-discrimination based on health status, protection from lifetime and annual caps, and other provisions.  If there is no monetary penalty for failing to have insurance, the Texas court argued, then Congress’ authority to pass the ACA based on its taxing power is invalid.  The lower court struck down the entire 1100-page law but the result was “stayed” until the Supreme Court could hear the case.

That case is scheduled for argument on November 10, 2020 and a decision will be rendered sometime in June of 2021.  At stake are numerous insurance protections cited above that impact millions of Americans, as well as health care coverage for 20 million people from expanded Medicaid and private insurance under the health insurance exchanges.  Despite the expected conservative majority hearing the case, there is a real chance the court will not strike down the entire ACA.  The real question before the court is whether the individual mandate can be severed from the existing law while the rest of the law survives.  This is the most likely outcome, but there are no guarantees with any case before the highest court.  NAAOP will continue to keep our members and friends informed as developments occur.

We urge all members of the O&P profession to VOTE on November 3rd!

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