The Dose - Why the Midterm Elections Matter for Health Care

Episode Date: October 21, 2022

The midterm elections are around the corner, and health care is likely to be a major factor in how Americans vote. Abortion and reproductive health access will motivate many people, as will inflation (which impacts the cost of care). On the latest episode of The Dose, host Shanoor Seervai talks about the most pressing health care battles to watch with Katie Keith, director of the Health Policy and the Law Initiative at Georgetown University Law Center’s O’Neil Institute. Keith talks about how access to abortion may play out at the federal and state level, legal challenges to the Affordable Care Act’s guarantee of free preventive care, and the impact of the impending end of the public health emergency.

The Dose is a production of the Commonwealth Fund, a foundation dedicated to healthcare for everyone. The midterm elections are now just weeks away, and once again, healthcare is a major player. Every seat in the House of Representatives is up for election in November, and one-third of the Senate seats face a contest. That means access to health care and reproductive care could shift dramatically in many states. I'm Shanwar Sirvai, and today on The Dose, we'll discuss why these midterm elections are so important and unpredictable for the future of health care. My guest, Katie Keith, is the Director of the Health Policy and the Law Initiative at the O'Neill Institute at Georgetown University Law Center. She is also a contributing editor for

Health Affairs, where she provides timely analysis on the Affordable Care Act. Katie, thanks so much for joining me today. I'm so excited to be here. Thank you. We're going to talk about federal policy issues and politics and also all of that at the state level. So let's start now with a broad snapshot. Where is healthcare reform and legislation right now after the Inflation Reduction Act became law? Yeah. Democrats have ticked off a couple of pretty big, in some ways, very historic items, including allowing Medicare to negotiate prescription drug prices. This is something that's been on the agenda for decades for Democrats, and they sort of just got it done. There's also a lot

of stuff left on the cutting room floor from that policy. So I think if we were going to look ahead, things like closing the Medicaid coverage gap or making additional Affordable Care Act improvements, that's all something that I think hangs in the balance with the November election. So big gains, but a little bit of uncertainty now about the future. And is there momentum after the Democrats have ticked off their big ticket items to circle back to some of the things that have been left out of the Inflation Reduction Act? I think so much is going to hinge on what happens in this November election cycle, you know, who controls the House. Of course, you'll still have, I think, President Biden in

the White House calling for a lot of these policies, as he has since he's been on the campaign trail. You know, I think there could still be things that happened this year, maybe in the lame duck session after the election. But in terms of some of those big ticket priority items for Democrats, things like, you know, Medicaid coverage gap or some additional ACA enhancements, I think we have to wait and see what happens in the election. Two issues that seem to be top of mind for voters are inflation and abortion. How do you think it's going to play out if there's a sort of collision between the two? You know, we saw some recent data, like a new poll from Kaiser Family Foundation. You know, I think early predictions were that abortion would not be a big motivator in the election. And I think some of the

analysts are reversing that position. And now there has been this uptick. So about half of voters said the Supreme Court's decision in Dobbs overturning Roe v. Wade made them more motivated to vote. And that's up by about seven percentage points. You're seeing like a pretty significant shift, I think, especially in a midterm year where people are saying, no, no, I am going to vote in the midterm elections. I wasn't going to before. This is actually very important to me. And then they also had, you know, information that I think eight in 10 people across, you know, both political parties oppose abortion bans in the cases of rape, incest. They oppose criminal penalties on providers and women. They don't like these bounty hunter laws that were first started in Texas, where you have citizens trying

to sue their neighbors over whether they helped someone get an abortion. But really strong support. When you ask people, right, and you do the polling, folks don't like this. You are sort of seeing this uptick in the polls. And folks who are familiar with the ballot initiative effort in Kansas, I think, were very surprised that it was as much of a motivator as it was. I want to talk more about Kansas when we talk about the states, but on this question of abortion, one thing that occurs to me is, are voters really thinking of abortion as a healthcare issue, or is it talked about as something outside of health care? Now, to go back to the Kansas experience, I've read a fair amount about the messaging that was used there.

And I think it's a spectrum of, you know, women talking about being able to make their own decision all the way to, you know, providers and doctors and people in white coats saying, you know, this is the penalty that I would face if this was it. And so I don't think anyone talks about it solely divided from healthcare. I do think it has been a strategy by those who oppose abortion rights to sort of separate the two. One interesting tidbit is in the wake of the Affordable Care Act, there were all like several constitutional amendments at the state level affirming the right to healthcare that you choose. And we're actually seeing some of that language that came from the Affordable Care Act fight be cited in the litigation over abortion rights in some of these state disputes. And so there is, you are seeing this intersection very much, the sort of right to health care, just like the right to privacy is very much, I think, coming up in

these state level fights over abortion. So I think it's the right question. Well, let's follow the discussion at the state level then. So starting this part of the conversation at the top, there are 36 governors' races coming up in November. And how are those going to impact the healthcare landscape? I mean, I think governors play a tremendous role. States, period, as your listeners know, play a huge role on healthcare. And we've already seen that play out, even just certainly in the wake of Dobbs, where you have everyone from, you know, Governor Whitmer of Michigan suing to make sure that abortion rights are preserved in Michigan is just one example. But governors can veto the legislation that they disagree with

that's coming before them. We've also seen governors really use the power of the pen and executive authority in areas from certainly Affordable Care Act implementation, Medicaid expansion, Louisiana and Pennsylvania examples, and Ohio where the governor pushed through Medicaid expansion on their own and didn't wait for the legislature. I know I and many others are very closely watching elections in Georgia, Kansas, Michigan, Nevada, Pennsylvania, Wisconsin, and Arizona. I think those are some of the more competitive races, but high population states, yeah, on the forefront of a lot of the battles that I think on healthcare are arising. They are the ones that are the most competitive, where there's a potential that control of the governor's mansion could flip. And Kansas has come up a few times.

So let's talk about what happened in Kansas. It was the first state that let voters directly weigh in on abortion. And they indicated their support for maintaining access in the state. So what does this referendum in Kansas tell us or not tell us when we're looking to November? I would say I think the voters in Kansas resoundingly rejected this ballot measure in a way that I think was a surprise to the proponents of the ballot initiative, if I understand correctly. I think seeing the experience in Kansas and then hearing some of the polling data that we already talked about, it could be a significant, you know, turnout motivator for some of these races. You know, it's worth noting there are five other abortion related ballot initiatives in states across the country. Some of those are to

protect, you know, sort of enshrine a constitutional right to abortion in those state constitutions. So you're seeing that in California, Michigan, and Vermont. Kentucky voters there will consider a sort of anti-choice ballot initiative, which sounds very complicated. They have an existing law, but they want to put it in the constitution. And that's what the voters will be asked about in Kentucky. And then Montana as well. It's not a constitutional issue, but it's an abortion-related law that's being put to the voters. So it's going to be really interesting to see how the dynamics are the same or different in the other five states in November and what that means for those elections too. Also worth noting, South Dakota has a ballot initiative on Medicaid expansion this year. It is far from

the first time, right, that we've seen ballot initiatives be used on healthcare issues. Other states have done this too. And, you know, it has been explored as a way to kind of try to get, to try to fill the Medicaid coverage gap in as many states as possible. But I think we are, my understanding of where you can use state ballot initiatives, we're quickly coming to the end of that list. So it has been a very successful strategy. Any state where this has been put to the voters, they have overwhelmingly voted in favor of Medicaid expansion, but not every state allows it. And so there's going to be, there's, we'll inevitably be left with some big states where this is not an option to take it to voters. But again, South Dakota, another one to watch there.

Right. I did have one more question about a state level issue. You know, the last episode we did on the dose was about care for trans youth, particularly in the South, and ways in which policymakers have been attacking and limiting that. Do you think that gender affirming care and care for transgender people is going to play out in the November election? I think so. Just having seen the way these issues have been sort of so politicized, especially when you think about what we've seen in just the past year, past two years in terms of legislation against transgender young people, like really targeting children and families in a way that I do think is political, you know, and that's likely to continue. I mean, something that we maybe haven't touched on, but I think is another thing for listeners to think about is all this state legislative. We've talked about Congress being up, but a lot of state legislatures will, you know, will be up for election in November as well. And so we could have dramatically different looking state legislatures in a

lot of these states. And so one question is, are those state legislatures getting more conservative or less? And so keeping an eye on those races, because I think if they get some, if some states get even more conservative than they are now anticipating sort of this, I think for trans trans youth,

both on healthcare and sports and a whole range of this, I think for trans youth, both on healthcare and sports and a whole range of issues, probably a continuing onslaught of legislation, right? And then I, you know, I'm pretty interested to see what happens with some of the abortion restrictions that get taken up next year. And we're sort of in this time period, from my perspective, where you have the Dobbs decision and that sort of, you know, with the overturning of Roe versus Wade, it triggered a lot of state laws, many of them very, very old to go back into effect. And so a lot of the fights we've been seeing in the courts and elsewhere is over this really old statutory language and sort of folks going, I don't know what this means. And it's pretty vague. It's not very precise. Some of that might be on purpose, but it's really old.

We've only seen, I think, one or two states at this point adopt new legislation, right? And so I think by the time we get to January or we get to pre-filed bills in the fall, a lot more states are going to update, I suppose would be the right word, or enact new legislation and new, perhaps more specific abortion restrictions, but it could be much more draconian. I want to shift gears a little bit and draw on your expertise around the ACA. So looking at where we are right now, the number of people in the U.S. without health insurance is at a historic low, but there are still significant gaps and universal coverage is still a distant and elusive goal. What are the greatest areas of concern and potential for coverage gains coming out of the 2022 midterms?

I think you have the Affordable Care Act itself on the strongest footing that it's ever been on. Record high marketplace enrollment, enhanced marketplace subsidies that I think are very much kind of the unfinished business of the original Affordable Care Act. You had Congress in the American Rescue Plan Act come in and make the subsidies what I think Democrats in Congress in 2010 always wanted them to be. And then with the Inflation Reduction Act, you had that extended through at least 2025. So subsidies, a Biden administration who sees the Affordable Care Act as a tool and is using that as a tool in the toolbox and flexing its muscle and getting as many people in as possible. And you're sort of seeing the gains really sort of using the Affordable Care Act to get at the uninsured rate that you're talking about. So record high, strongest the law has ever been from my perspective. role, but there's a lot of coverage implications tied to that declaration from the secretary of

HHS. And so, you know, we're sort of at this, it feels a little bit to me like a precipice where we've got this record high enrollment. At the end of the public health emergency, you're going to start to see Medicaid, state Medicaid programs doing eligibility redeterminations. And the top line number is, you know, up to 15 million people could lose coverage as a result. And it's going to take an all hands on deck approach to help walk them over to the marketplace or their job based plan. So you have really record low uninsured rate, but we're also waiting for what could be a really big wave of more uninsured people than we've had in quite some time. And so that's something that I think as we think about policies or what's going to happen in November

2022, we're in this kind of world where many of us are kind of watching and waiting. And some states are going to really step up and try to make sure everybody gets to the right place. I think some states are going to speed through and folks are going to get lost in the shuffle and it's not going to be a great experience in those places for people. So are you going to have a new Congress willing and able to work on some of these issues? Or are we going to have kind of a bit of a crisis, right? You've got sort of stability on the ACA. And so at least at the minimum, you have a soft landing place for a lot of folks coming off of Medicaid. But maybe ideally you'd have a Congress that could help ease that transition further or work with the administration so that,

you know, everything is in place that needs to be in place, that kind of thing. So when I think about the uninsured rate, it is things like the Medicaid coverage gap. There's definitely like a next generation of policies. Yeah. And that's a challenge, I feel, because the public and also as a result of that, our policymakers are fed up with the pandemic and don't want to talk COVID and public health emergency anymore. So it might be challenging to protect some of the gains that were made in that time. I think that's right. And, you know, the irony being we haven't really talked about the pandemic in a conversation

about health care in November 2022, which maybe that sort of says enough. The other issue that I sort of think about for November 22, it links back to inflation. We're likely to see health care inflation coming in soon. I think premiums are probably set to go up. There's a little bit of a lag as we see labor costs increase and hospital costs increase. I think at the same time, you have all this data showing the level of underinsurance that folks have with higher out-of-pocket costs. Congress did try to take some of this on through surprise medical bills and the No Surprises Act, but it just underscores that there's a coverage

conversation and then care itself is still very, very expensive. And that is translating to medical debt, right? I actually think that's where a lot more of the conversation is right now is on medical debt, maybe a little bit more on cost containment. And then some of these underinsured issues, things like high deductibles, et cetera. And the other battle that's playing out around the ACA is on preventive services. And of course, the ACA protects these, but there are legal challenges to that. So can you just give us a brief update on the ongoing litigation in the courts on preventive services?

Sure. So perhaps as listeners know, back in early September of this year, a federal district court judge in Texas, Judge Reed O'Connor, most folks know him as the judge who declared the entire Affordable Care Act invalid. That's the case that went up to the Supreme Court last year in 2022. His conclusions were rejected by the Supreme Court, you know, seven to two, but we're still here. So the preventive services requirement under the Affordable Care Act that you're asking about, this is not a challenge to the entire law like that one was, but it is a challenge to this preventive services requirement, which I think is one of the most well-recognized and most popular provisions of the law. It applies really broadly to pretty much every type of commercial plant, almost every type of commercial plant. So a lot of people benefit from this.

I think more than 150 million Americans benefited from this provision in 2020 alone. It's also been in effect for a very long time. It was one of the few ACA provisions that went into effect in 2010, the year that the law was enacted. So we've had these services covered for 12 years at this point. And there has been a lot of litigation over one part, historically over one part of the preventive services mandate. That's the contraceptive mandate. That is one component of the broader requirement. This though, this is a challenge to the whole thing. And so contraceptive included, but the whole thing. Historically, we've seen a lot of litigation over the regulations,

the rules to implement the statute. And here the plaintiffs are going straight to the statute, to the law itself to say, we think this is unconstitutional. And so what Judge O'Connor said in early September was he agreed in part. So the way the preventive services requirement works, you have sort of expert evidence-based organizations who make recommendations about which services have the strongest evidence. And then insurance companies and employers have to cover those. And there's services recommended by the U.S. Preventive Services Task Force that have the highest ratings. There's women's and kids services recommended by HRSA. And then there's the immunizations recommended by ACIP. Anyway,

there's sort of those three entities that make these recommendations. Judge O'Connor found no problem with the immunizations recommendations and with the women's and kids recommendations, but he did find a defect in his mind with the recommendations from the U.S. Preventive Services. If we were to lose the recommendations from the U.S. Preventive Services. If we were to lose the recommendations from the Preventive Services Task Force from coverage, it's more than 50 types of screening. It's actually the way that the vast majority of these recommended services come in. It's a big deal. It's cancer screenings. It's high blood pressure. It's pre-exposure prophylaxis, which is an HIV prevention medication. It's screening colonoscopy. It's pre-exposure prophylaxis, which is an HIV prevention medication. It's screening colonoscopy. It's the bulk of the services come in based on recommendations from that entity. So him, the fact that the court found a problem with that, it's not insignificant by any stretch. Correct.

And so what happens next is Judge O'Connor sort of said, and I've found this to be unusual, he said, I think this part of the law is unconstitutional. And he basically asked the plaintiffs and the government to come back, provide him with more information. That process is going to, you know, they'll sort of go back and forth. That will happen until mid-January, and then we will get a decision sometime in early 2023. And so that would be the point where Judge O'Connor would say, this part of the law is unconstitutional and I'm making my decision nationwide. Right. Or I'm limiting it to only these people or it's only in Texas. That's the part we don't know yet. So it's we're sort of in a little bit of limbo, I would say, at this point. There's more to come.

And then from there, you would see his decision appealed to the Fifth Circuit Court of Appeals, and then potentially the Supreme Court. So it's a little bit strange. I feel like we have the first half of the decision, but not the second half. Oh, and I should say, you know, in the meantime, because we don't really have the impact of his ruling yet, folks coverage should not be disrupted. You should still have coverage of your preventive services without cost sharing. That should be the case for 2023 coverage to sort of status quo in terms of coverage. But I think it does put the coverage and cost sharing protections for these core preventive services at risk going forward. to let you go if we look ahead at the healthcare issues that are likely to be stuck or have momentum after the midterms. What are some of the big ones on your mind? I think the end of the public health emergency might be coming in 2023. So all the planning and

what that means and making sure people understand their rights and can get to the right coverage, that's going to be just a huge, huge undertaking. I think implementation of the Inflation Reduction Act is going to be huge. We're going to keep, I think we're going to keep talking about Medicare prescription drugs, you know, just because Congress enacted the policy, does all these benefits have to be rolled out? HHS has to put out the list of drugs where it's going to negotiate the price next fall, right? All these things are going to keep coming. It's not sort of one and done by any stretch. I think we're going to continue to be looking to the courts on things like preventative solutions, but also abortion. Right, right.

We're going to see, I think, a ton more litigation on abortion in addition to kind of seeing what happens at the polls and in the state houses and Congress. I think drug pricing in general is probably going to continue to be motivating, right? There were parts of the Inflation Reduction Act, or initially it was Congress wanted it to apply to more of the commercial market and that got paired back to Medicare. So I think you'll still see discussions about how do we bring drug prices down for more people. And specifically, if we think about women's health, are there strategies that we think are going to emerge or will accelerate after the midterms? That's a great question. What it's got me thinking about is, for example, there is a rule on the contraceptive mandate that the Biden administration is considering right now. What

happens with sort of access to contraception and what happens with the Title X family planning program. I think maybe seeing how the dust settles in November of 2022 and having an understanding of where there might be state, again, we've been kind of in a little bit of limbo also post Dobbs. I think a lot will get sorted in the next state legislative cycle. And with these ballot initiatives that a lot of it will be focused on the courts after that. And then I think it's how do you create some sort of safety net or some sort of access or bolster things like contraceptives or, you know, other, you know, how do you sort of, if those state restrictions are going to be what they are, how do you fight them, but also maybe adapt? How do you sort of build in the support that people need to get the health care that they will inevitably need? And we'll try to come to that on a future episode.

But it really sounds like there's a lot on the line here. Undoubtedly, it's a really significant election, for sure. Both state and federal. Katie Keith, thank you so much for joining me on The Dose today. Thanks for having me, anytime. This episode of The Dose was produced by Jodi Becker, Mickey Kapper, Naomi Leibovitz, and Joshua Tallman. Special thanks to Barry Scholl for editing, Jen Wilson and Rose Wong for our art and design, and Paul Frame for web support. Our theme music is Arizona Moon by Blue Dot Sessions.

Our website is thedose.show. There you'll find show notes and other resources. That's it for The Dose. I'm Shana Sirvai. Thank you for listening.