With less than a week before the presidential election, the nation is also focused on an impending Supreme Court case that may decide the future of the Affordable Care Act. The case, California v. Texas, has drawn the attention of members of the Massachusetts Jewish community.
A group of 18 Republican states are seeking repeal of the ACA, with oral arguments before the Supreme Court expected to be heard on Nov. 10. Their argument hinges on the constitutionality of the individual mandate, the ACA provision requiring individuals to purchase health insurance or face a penalty. In the 2017 tax cut legislation, Congress lowered the penalty on not obtaining insurance to zero, thus causing some lower federal courts to rule the entire ACA unconstitutional.
Backers of the ACA – mostly Democrats – fear if it is struck down by the high court, hourly employees who are not offered benefits would go without health insurance. In addition, coverage could be stripped away from millions of people with preexisting conditions such as diabetes, cancer, and asthma, and now the more than eight million Americans who have had COVID-19. Insurance companies also could impose lifetime caps on benefits, and parents would no longer be allowed to carry their children on their health insurance for those up to age 26.
On Monday, the Republican Senate majority confirmed the appointment of Judge Amy Coney Barrett to the Supreme Court, replacing the late Ruth Bader Ginsburg. Having Barrett – a conservative who has come out against the ACA – on the bench for the Nov. 10 hearing does not bode well for its survival.
When it came to predicting what will happen when the court takes up the case, local Jews expressed a range of opinions.
“If the court – especially with Judge Barrett joining it – if it strikes down the provision of the ACA tied with the individual mandate, if that provision is unconstitutional, the question then becomes what else is struck with it,” said Paul Hattis, a health policy veteran who is a former commissioner of the Massachusetts Health Policy Commission.
Hattis said if the individual mandate is struck down, then “Republicans on the most extreme level” would contend that “therefore, the whole ACA must be struck down.” He calls it his “greatest worry” because 23 million people would lose their health insurance.
“It’s the worst thing we could do right now,” said Amy Rosenthal, head of Health Care for All, a Massachusetts-based nonprofit. She said that the number of uninsured is 23 million and in Massachusetts, a low-ball estimate for those who could lose their state-run insurance is 375,000.
“We’re really facing three crises at one time,” Rosenthal said. “The COVID-19 pandemic, the significant issues around racism and systemic racism, and the economic crisis for so many individuals and families … We think of tikkun olam, we would have a lot of repairing to do after taking health care away from 23 million people during these crises.”
Rosenthal and Hattis noted that this is one of several options for the court.
“At the other extreme,” Hattis said, “the court could say that [the individual mandate] provision loses the constitutionality of it, but the rest of the ACA is severable,” which would preserve “all the rest of it.”
However, Tom Mountain – a co-vice chairman and founder of the Massachusetts Republican Jewish Committee and a vice chairman of the Massachusetts Republican Party – voiced his hope that the entire ACA would be struck down.
“It will be thrown out, a thing of the past,” Mountain said. “We can move on to providing, basically, I don’t want to say ‘real affordable care,’ but health care along the lines of what a capitalist, western society should have, not socialized medicine, which does not work that well.”
The debate over to what extent the United States should have government-run health care goes back decades. It was pioneered at the state level in Massachusetts in 2006, under former Republican governor Mitt Romney, earning the nickname “Romneycare.”
“Romneycare, in retrospect, was a bad thing,” Mountain said. “It led to Obamacare.”
Rosenthal had a chance to work with the Obama administration on the ACA during her previous position with Community Catalyst, a national health care advocacy organization. Her involvement in the process included multiple levels from start to finish.
She said that improvements do need to be made, and is working with partners in Massachusetts including two advocacy organizations with Jewish connections – the Jewish Alliance for Law and Social Action and the Greater Boston Interfaith Organization – on a prescription drug campaign.
“We were first in the nation in terms of coverage, which is good,” she said. “It does not mean that more can’t be worked on.”
Those who support the ACA were asked about the arguments of the other side.
“Unless you think the ACA is a sinister law that would get struck down and something would be created to replace it, it’s hard work to understand the thinking of these Republican states,” Hattis said. “If it’s more market-based solutions, the ACA is probably the closest to a market-based solution for as many people as possible in the country.”
Mountain said there is “no room for common ground.”
During the pandemic, “the health care system is functioning very well, extremely well.
“I’ve been to the doctor several times,” he said, “and like any good patient, I comply with the face-mask restrictions. Health care, as it does in the U.S., continues to function brilliantly, so long as it’s private, privatized.”