The 5th Circuit Court of Appeals in Texas is expected to rule soon on the constitutionality of Obamacare. While its decision will have significant implications for American health care policy, it won’t affect people’s health coverage for at least a couple of years as the appeals process plays out. In the meantime, a ruling striking down Obamacare would give the country the opportunity and the impetus to unite behind a health care reform plan that actually lowers costs, increases choices and improves the doctor-patient relationship.
In 2012, the U.S. Supreme Court ruled that Obamacare was constitutional under the government’s power to tax. However, President Donald Trump’s tax cuts eliminated the tax, more commonly known as the penalty, for not purchasing health insurance. In February 2018, 20 states led by Texas filed suit against the federal government, arguing that Obamacare was no longer constitutional because the tax upon which the law had been based no longer existed. Without this tax, the plaintiffs argued, the law’s individual mandate is nothing more than the unlawful federal compulsion to purchase health insurance.
Last December, a federal judge in Texas agreed with this reasoning and declared Obamacare unconstitutional. But he also issued a stay on his judgment, allowing the law — the Affordable Care Act — to remain while the case is being appealed in order to save Americans potentially needless uncertainty. The case, Texas vs. Azar, was then appealed to the 5th Circuit.
Politicians and commentators claim that this case threatens to eliminate health care coverage for Americans covered by Obamacare. California Attorney General Xavier Becerra, who is leading the appeal, called the lower court ruling “an assault on 133 million Americans with preexisting conditions, on the 20 million Americans who rely on the ACA for health care.” House Democratic Caucus Chairman Hakeem Jeffries claims that the Trump Justice Department is trying to “destroy health care for tens of millions of Americans.”
Sabrina Corlette, co-director of the health care industry-funded Center on Health Insurance Reforms at Georgetown University, warns that if Obamacare is deemed unconstitutional, “the chaos that would ensue is almost impossible to wrap your brain around. The marketplaces would just simply disappear and millions of people would become uninsured overnight, probably leaving hospitals and doctors with millions and millions of dollars in unpaid medical bills. Medicaid expansion would disappear overnight.”
This is fearmongering of disgraceful proportions. In reality, Democrats would appeal a plaintiff’s victory to the Supreme Court. In the meantime, the trial court stay would remain in effect. The earliest the high court would be able to hear the case would be next fall at the start of its next session, barring an expedited Supreme Court timeline. Based on the usual timeline between hearings and rulings, this means the soonest it would issue a final decision would be the spring of 2021. Obamacare health coverage already purchased and planned upon for 2021 would likely continue.
In the meantime, policymakers and reformers can develop a health care alternative that fixes the many flaws in Obamacare while keeping its protections for those with preexisting conditions. Obamacare has done nothing to control spiraling medical costs and diminishing health care choices for many ordinary Americans. Despite their different reform visions, Republicans and many Democrats are united in their agreement that the country must move on from Obamacare.
‘Medicare for All’ would be worse
Yet the solution proposed by these Democrats — “Medicare for All” — would exacerbate our current cost and choice problems even further. The Mercatus Center of George Mason University estimates that Medicare for All would cost $32 trillion over 10 years. That means one year would amount to more than two-thirds of the entire 2020 federal budget.
The only way government-run health care could attempt to control costs is by rationing care — meaning fewer options, longer wait times and less innovation.
A better alternative is the Job Creators Network Foundation’s “Healthcare for You” framework, which prioritizes reform from the bottom up rather than the top down. In practice, this means deregulating insurance markets and allowing state officials to set insurance parameters while maintaining protections for those with preexisting conditions. Instead of the one-size-fits-all health care plans that proliferate today, this reform would unleash a flood of new insurance options — from Cadillac to catastrophic — that patients could tailor to their unique needs.
By also prioritizing direct medical care, transparent prices and expanded tax-free health management accounts (also called health savings accounts), a true health care market would emerge, allowing patients to shop for coverage while prices fell.
A Texas vs. Azar ruling that deems Obamacare unconstitutional will help spur such long-overdue patient-centric health care reforms. It will not immediately remove lifelines for patients, as critics claim.
Thomas Price, a former Health and Human Services secretary and former member of Congress, is a senior health care policy fellow at the Job Creators Network. Alfredo Ortiz is the president and CEO of the Job Creators Network.