Today, Explained - The nine lives of Obamacare

Episode Date: January 7, 2019

Obamacare’s back in the crosshairs. Vox’s Sarah Kliff breaks down a lawsuit that’s pitting states’ attorneys general against each other, and how the new House will defend the landmark legislation. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Support for this episode of Today Explained comes from Quip Electric Toothbrushes. Over 1 million people use the Quip Electric Toothbrush and you can be over 1 million and 1. The Quip starts at just $25 and if you go to getquip.com slash explained right now, you can get your first refill pack for free. G-E-T-Q-U-I-P dot com slash explained. Sarah Cliff, you report on health care here at Vox. It's a brand new year with a kind of brand new government. How's Obamacare doing? Well, Obamacare is starting this year like it starts many years,

working its way through another legal challenge that might go to the Supreme Court. Okay, so what are the big things we need to know about the challenges to Obamacare right now? I'd say it's kind of threefold. And the first is something important that happened at the very end of 2018. Sweeping decision from a federal judge

striking down all of Obamacare. Republican governors and attorneys general from 20 states challenging the individual mandate. The judge, a George W. Bush appointee, ruling the requirement of coverage unconstitutional. President Trump calling it a great ruling for the country. But what happens now for the millions who rely on Obamacare for health insurance and for covering pre-existing conditions? Now, I want to put this in context that the law is still standing. You know, a Texas judge cannot totally overturn a major federal law. So if anyone is panicked about their Obamacare coverage, it is still there.

But he issued this very, very sweeping ruling that said as a result of some actions Congress took in 2017, the law now cannot stand. So we have this huge ruling against the Affordable Care Act. The second thing to know is that 17 attorneys general, all Democrats, are now appealing this decision up to the Fifth Circuit. And the third thing to know is Congress is now getting involved. Because it's a new Congress. New Congress. That's Democrats. Controlled by Democrats. And the Democrats and the Congress have also decided they're throwing their hats in the ring. They are going to intervene and also defend the Affordable Care Act and the Fifth Circuit. So we have this lawsuit that started out as a kind of far-flung

challenge to the Affordable Care Act, drawing the attention of attorneys generals and Congress and becoming yet another major legal battle over Obamacare. Okay, so let's go through those three things one by one, starting with the Texas judge. What exactly is the argument that he's making? So he sided with the people who brought the challenge. And the argument that they made is this. Back in the end of 2017, Congress passed a big tax bill, right?

And it did all sorts of things. One of the things it did was get rid of the penalty for not carrying health insurance, the individual mandate. It didn't wipe that off the books entirely. They didn't have the votes to do that. But they set the penalty for not carrying health insurance to $0. So it's essentially the same for you and me as it being wiped off the books. So in comes an enterprising conservative lawyer who says, aha, this can be the downfall of Obamacare. He thinks back to a 2012 Supreme Court decision.

This was the first challenge to the individual mandate. The one where Roberts broke the tie and sided with the liberals. Exactly. Chief Justice Roberts, with a clever bit of legal jujitsu, ruled that while Congress can't simply force Americans to buy health insurance, they can tax Americans more if they don't buy insurance. And that's what this law does. And so with that, virtually the entire Obama health care law was saved.

And what Roberts said was that the individual mandate is constitutional because it is a tax. Roberts wrote, because the Constitution permits such a tax, it is not our role to forbid it or to pass upon its wisdom or fairness. Now that the penalty is set to zero dollars, the argument in this case was that it's not a tax anymore. The individual mandate is unconstitutional. But it goes even further than that. The next step of the argument is that if the individual mandate falls, it is so integral to the Affordable Care Act, the entire rest of the law has to fall with it. Interesting. So it essentially looks at the individual mandate as kind of a little key that unlocks the door to repealing the rest of Obamacare. And the judge in this case sided with that argument. And it's a really sweeping argument. It says that everything in Obamacare has to fall if the mandate falls. And who is this person who's challenging Obamacare in Texas to begin with? So it is kind

of attorney generals versus attorneys general. It is a bunch of conservative attorneys general who are party to this lawsuit. Well, we have got 20 state attorneys general on board with this. Frankly, my hope is that this authority returns to the states where it belongs. The one size fits all mandate doesn't work. And we've seen that in the series of broken promises from Obamacare. Put this back in the hands of the states. You know, it seems pretty clear they did this in a Texas court because they thought the judges there would be pretty amenable to their arguments. So I remember seeing like the notifications and the breaking news that this had happened. I was like, hasn't this already been decided by the

Supreme Court? But now it all makes sense. The reason it's allowed to happen is because the new tax bill has changed fundamentally the defense that the Supreme Court made of Obamacare. Yes. I mean, I would say one of the things that's different about this Supreme Court challenge, and there have been, gosh, like four of them at this point for the Affordable Care Act, is that this argument, this idea that if the mandate falls, the entirety of the law has to fall with it, it has been greeted with a lot of skepticism, even within the conservative legal scholar community about whether it can actually be a successful case. Good morning. I want to thank you all for being here. Javier Becerra, Attorney General for the state of California.

So the second part of this is that there are these 17 Democratic attorneys general now appealing the Texas judge's decision, right? What's going on there? In our motion to intervene, we argue that striking down the Affordable Care Act would cause immediate and irreparable harm to the people of our states. Over 11.8 million low-income individuals receive coverage through Medicaid as a result of the Affordable Care Act in the states that have expanded access. There are some 10.3 million people around the country who've obtained health insurance through the Affordable Care Act's

marketplaces. So this is a bit of a weird situation. Usually the way this works is that the federal government defends federal law. That is not what is happening here. Earlier on in the history of this case, the Trump administration filed a brief where they said they actually support overturning the Affordable Care Act. They didn't think the judge should go quite as far as he did. They said that certain provisions like the ban on preexisting conditions, the requirement to cover everybody, those things needed to fall if the individual mandate fell because they were so just tethered together. So once it became clear the Trump administration was not going to defend this in court, these attorneys general basically raised their hand and said, can we intervene? Can we present the defense if no one else will? And the court said yes. So now you have this coalition of 17 attorneys general, and they essentially are arguing that Congress clearly knew what it was doing when it set the individual mandate penalty

to zero. Their intention was not to repeal the entirety of the Affordable Care Act. Their intention was to do exactly what they did in their tax law. And they are kind of going to be the ones who carry this through the court system because the federal government is on the other side of things at this point. How unusual is that to have state attorneys general going up against state attorneys general in the federal courts? It's, you know, I'm not a courts reporter. I'm a health reporter. But I've never seen this covering a lot of Obamacare lawsuits. Usually you see attorneys general, you know, filing amicus briefs,

you know, voicing their support for one side. It's pretty unusual to have them stepping in entirely for the federal government. So does this mean that we're going to see some sort of crazy patchwork of Obamacare in different states? Or is everything the same until this builds to some sort of decision? So right now, everything is the same. And I think that's a really important point for anyone who is worried about their health insurance, who gets coverage through Obamacare.

You want to just say it again? Yes, I definitely want. Everything is the same. Your coverage exists. It does not cease to exist because of this decision. On December 30th, the judge in Texas, Reed O'Connor, issued a stay, which means that nothing changes until this gets sorted out in the courts. So it looks like the appeals process is going to run through 2019. That could set up a Supreme Court case in 2020. I've heard there's some other things

happening in 2020. So it's an interesting timeline that we're staring down. Coming up on Today Explained, the nine lives of Obamacare. It's a brand new year. Have you made any New Year's resolutions yet? One of mine is to try and eat less meat. Like, not to absolutely swear off the stuff, because if you're at, like, a family gathering or a friend's place and they've made something, you don't want to offend them. So, like, there are some cases, maybe.

But another resolution you could make, if you're so inclined, is to, you know, take better care of your mouth. And Quip would like to help if that's what you're thinking, because the Quip electric toothbrush is a better electric toothbrush. It's got these sensitive sonic vibrations for an effective clean that's gentle on your gums. And not to mention the Quip electric toothbrush is one of the first electric toothbrushes accepted by the American Dental Association. Over a million people have made that transition to the Quip. You can do so at getquip.com slash explained, where it starts at just $25 and your first set of refills is free.

G-E-T-Q-U-I-P dot com slash explained. Okay, Sarah, we talked about the Texas judge and the Democratic attorneys general who are opposing his decision. What are Democrats here in Washington doing for Obamacare now that they have control of the House? On their second day in control of the House on January 4th, they announced that they are going to file paperwork also with the Fifth Circuit to defend the Affordable Care Act in court. It almost feels a little Captain Planet-y to me. Like you have members of Congress, the attorneys generals kind of teaming up to give this legal defense to the Affordable Care Act. And do Democrats feel that they owe that to Obama, to their voters, or do they feel like they have a mandate right now to go in to Congress and protect Obamacare? I mean, Obamacare is just as much Nancy Pelosi's baby as it is Obama.

She shepherded that bill through the House, and there were many, many moments when it was not clear it was going to pass. And she gave this great press conference, I remember, where, you know, it was one of those moments where it looked like Obamacare was not going to become law. And she was saying, you know, we go through the gate, the gates close, we'll go over the fence, the fence is too high, we'll pole vault in. If that doesn't work, we'll parachute in. But we're going to get health care reform passed for the American people for their own personal health and economic security. She was so integral in the law's passage and corralling her caucus.

So I'm sure part of it for her is personal that, you know, she wants to see this law that is a big part of her, the speakership legacy, survive. And I think they also feel like they have a mandate. They ran on health care. They won on health care. That they see the Affordable Care Act as a political asset after years of seeing it as, you know, a political obstacle. But what can they really do with the Republican majority in the Senate, with a Republican president who definitely has an ax to grind with Obamacare, if this is just circulating through the courts right now? One of the things they could do is, you know, actually just get rid of the individual mandate. They would just require some bipartisan work around the Affordable Care Act

that there is not much of a history of. The individual mandate was such a big part of the ACA's passage. What does Obamacare look like without it? And does it eventually just fall apart? Because the whole argument was that you need the individual mandate to make these markets work, right?

Yes. So the individual mandate, everyone spent so much time in 2010 talking about three-legged stools. This is all the things the healthcare nerds talked about. And the three-legged stool of Obamacare was that in order to have one leg of the stool, everybody gets health insurance. And a second leg of the stool that people are charged the same prices no matter what, you needed a third leg of your stool. You needed to require everybody to buy health insurance. So the healthy people subsidize the sick people. And the individual mandate is so important. Knock one leg out of the stool, you just have a terrible chair that doesn't work. Fast forward to 2019, the year we are currently in,

the individual mandate basically doesn't exist anymore. The penalty is zero. There's no fee for not carrying health insurance. And the market seems to be doing okay. And this is something when I talk to a lot of healthcare experts, they think they actually overestimated the importance of the mandate. And there are a couple reasons why looking back, but it seems like our wobbly two-legged stool, it's not so bad. Maybe it's just a bench. But it's actually holding up OK without a mandate. Like if you – one thing you can look at is enrollment. So right now there's no penalty for not carrying health insurance.

Last year when the mandate existed, 8.8 million people bought health insurance on healthcare.gov. In 2019, no mandate. The number drops to 8.8 million people bought health insurance on healthcare.gov. In 2019, no mandate. The number drops to 8.5 million. And that's with all of the pressure and all of the politics. Yes. 8.5 million people still bought healthcare. Yeah. So we're talking about a decline of about 300,000 people in a market that's a little

lower than 10 million. And it's not even clear that's related to the mandate. The economy is getting better. People are getting insurance at work. Virginia expanded Medicaid. Some people are shifting out of the private market. Premiums actually decreased by 1% on the marketplace this year. So one other worry is that premiums would just spike without the mandate

because insurance companies would think, well, all the healthy people are leaving. I'm just going to have all these sick people. I'm going to raise my premiums. Premiums are probably higher than what they would be if the mandate were still there. But we didn't see this like giant spike in premiums. So I am surprised and a lot of experts I rely on are surprised about how stable the Affordable Care Act has been without the mandate. And looking back, question whether it was such an integral part that we used to think it was. How's Obamacare doing overall right now? How many Americans get their health insurance from

the Affordable Care Act? So I'd say Obamacare is a real mixed bag at this point. You know, there are certain things that are going really well for Obamacare. The Medicaid expansion is one of them. Two states, Maine and Virginia, because of changes in government, are expanding Medicaid this year. That's about 300,000 people gaining coverage in those two states. When you look at the larger picture, it's a little hard to get the exact number, but we're probably looking at 25 to 30 million people who get their coverage through the Affordable Care Act, either through healthcare.gov, their state marketplace, or their state Medicaid expansion. So that's like

10 or so percent of the American population getting their coverage through the Affordable Care Act. At the same time, it still is struggling a little bit. It's struggling because of the Trump administration. It's struggling because of structural issues that existed well before the Trump administration. Premiums can be pretty high. Deductibles can be pretty high. The coverage can still be expensive, you know, especially for folks who don't qualify for a government subsidy. The coverage can be unaffordable. So I'd say the biggest issue is affordability at this point. But the law is doing better than I would expect it to be given all the things that have happened to try and weaken the Affordable Care Act.

When you've got like 30 million Americans on Obamacare and you've got like, let's say, another 20, 30 million uninsured still, this isn't like a partisan thing, health insurance. It's Democrats and Republicans, conservatives and liberals don't have health insurance or are using Obamacare, right? Oh, yeah. Yeah. I mean, there are some places, you know, in some places I've done reporting that vote overwhelmingly Republican and have really, really high rates of Obamacare enrollment. There is, you know, some of it, some of the places that have the highest enrollment in Obamacare are rural areas that tend to go overwhelmingly Republican. Which ones?

Kentucky, southeastern Kentucky, for example. Kentucky is one of the states that expanded Medicaid, saw a huge decline in its uninsured rate. And, you know, I spent some time visiting areas that went, you know, 70, 80% for Donald Trump, you know, places where I did not meet a single Hillary Clinton voter and met lots and lots of Trump voters who were also Obamacare enrollees. And I think that's, you know, if the Supreme Court does what these conservative attorneys general want it to do, those are the people who are losing coverage. There's plenty of Democrats who would lose coverage too, but there's plenty of Republican voters whose coverage is on the line with this lawsuit. So it's just amazing to me, I guess, that it hasn't become less politically divisive as far as like these partisan lines are concerned. Why do you think that is when it's benefiting voters of both parties?

So a lot of this is Republicans just aren't telling voters the truth about what they're doing. So if you look at the campaign of Josh Hawley, who until last week was the attorney general of Missouri, was recently sworn in as a Missouri senator. He is one of the attorneys general asking the Texas court to end Obamacare's protections for pre-existing conditions. He ran ads against Claire McCaskill talking about how he is going to protect pre-existing conditions. And it's so important to him because his kid is a pre-existing condition. And Claire McCaskill is the one who wants to take it away while he's suing to get rid of this part of the Affordable Care Act.

We've got two perfect little boys. Just ask their mama. Earlier this year, we learned our oldest has a rare chronic disease, pre-existing condition. We know what that's like. I'm Josh Hawley. I support forcing insurance companies to cover all pre-existing conditions. You see this from Trump as well. I mean, his Twitter account leading up to the midterm elections was full of statements about how Republicans are protecting pre-existing conditions. His Justice Department is asking the court to get rid of those provisions. So it really, in a way, everyone's united in saying they want to protect pre-existing

conditions because that's the popular thing to say. But there's a clear divide in what the two parties are trying to do right now with that part of the Affordable Care Act. We're like a couple of months and a year away from this thing being a decade old. How has it changed our health care system? You make me feel so old, Sean. You're welcome. A whole decade of reporting on Obamacare. You know, there was a funny moment a few years ago where I was lecturing in a college class and, you know, I'm not that old. I'm 33. And one of

these college students who was a, you know, I think a freshman or sophomore, I said something about preexisting conditions. And he said, well, what's a preexisting condition? Because he'd never heard the term because he just didn't know that was a thing that insurance did. So I think the big thing that has changed is this expectation that, of course, everyone has access to health insurance

and no insurance companies should not be able to deny you because you have a certain condition or a certain history. I think that's a big mindset change that happened because of the Affordable Care Act. I mean, the big legacy is changing the rules around who gets health insurance. It's getting about 20 to 30 million Americans health coverage, many more people with health coverage than before the Affordable Care Act. At the time the Affordable Care Act passed, there were some people who thought, well, this is going to be the backbone of American health care. Like, why would employers

go through the hassle of offering health insurance, just toss everyone on Obamacare, let them shop on the marketplace? It'll be like everyone going on Expedia, except instead of plane tickets, we'll all buy health insurance. That vision of Obamacare has like not really been realized. So at the end of the day, for most of us, our coverage didn't change a lot with Obamacare. You know, if you got insurance at work, you probably are still getting insurance at work today if you're at that, you know, same job or still in the employer system. But because Obamacare was passed on a party line vote, it just has always remained this very political law

in a way other expansions of health insurance like Medicare and Medicaid haven't. You've seen no softening of the partisan divide around the law. Sarah Cliff reports on health policy for Vox. She also hosts a podcast called The Impact. I'm Sean Ramos-Firum. This is Today Explained. On Friday, we did an episode about the flu shot.

In it, it was revealed that I hadn't yet gotten my flu shot. Neither had one of our producers, Luke Vanderplug. A lot of you were texting and tweeting at us with your concerns about our unvaccinated bods. And just for the record, Luke and I went out on Friday evening and both got our flu shots. You can see photographic proof at today underscore explained. The Quip electric toothbrush has sensitive sonic vibrations, not those brutish vibrations you're used to from your average electric toothbrush.

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