Protesters demonstrate in support of the Affordable Care Act. (Photo by LaDawna’s pics, licensed under CC BY 2.0)
Wisconsin officials and health care activists welcomed the U.S. Supreme Court’s ruling Thursday that upheld the Affordable Care Act (ACA), keeping in place the 11-year-old law that has expanded access to health insurance.
The court ruled 7-2 that the plaintiffs had no right to bring the case. But Atty. Gen. Josh Kaul suggested that the ruling shows that the lawsuit was based on a weak legal argument. Kaul spoke in a telephone news conference organized by Protect Our Care, an advocacy group that supports the ACA.
That was especially evident, Kaul said, because of the court’s ideological tilt, with six justices who are considered conservatives and therefore potentially likely to vote against the ACA, and three considered liberals who were expected to favor it.
“On the merits of the law, this is not a close case,” said Kaul. “And certainly it could have been 9-0. But 7-2 is a strong showing, from a court with the kind of majority we have here, that this suit really was meritless, and that the folks who brought the challenge did not have a strong legal basis.”
In upholding the law Thursday, the court leaves in place a marketplace that allows individual consumers to purchase health insurance and sets a series of government-mandated standards for coverage — standards that also apply to most other health insurance plans.
It also leaves in place a series of other consumer protections for virtually everyone with health insurance in the U.S., whether purchased through the federal insurance marketplace or covered by employers.
Protecting pre-existing conditions
If the ACA had been thrown out, “tens of millions of Americans would have lost their health insurance coverage,” Kaul said. People with a pre-existing health condition, who cannot be denied insurance or charged a higher premium because of the health insurance law, would have lost that protection.
The ACA enables adults up to the age of 26 to remain covered under their parents’ health insurance. It also prevents health insurance firms from imposing lifetime caps on coverage, so that “people are going to be able to get the coverage that they need without going bankrupt, without risking putting their families into poverty,” Kaul added. “This decision will literally save lives.”
On the call with the attorney general were three Wisconsin residents, each of whom spoke about how the ACA had enabled them to afford health care that would have been catastrophically expensive or worse.
Lillian Cheesman, an attorney in West Allis, said that the ACA enabled her to get coverage and a doctor’s care for a debilitating chronic condition that, until she had obtained treatment, had left her unable to practice her profession or engage in strenuous activity without passing out.
Without the coverage that the law provided, she said, “I don’t know how I would pay for my doctors, I don’t know how I would pay for my medication — and then I wouldn’t be able to do any of the things that I’ve come to enjoy and make life really something to be celebrated.”
David Marstellar of Milwaukee said that after he was diagnosed with congestive heart failure in 2003, he had to rely on employer-provided health insurance until he was fired from a job for missing too much work because of his illness. Without the ACA, his congestive heart failure would have made it prohibitively expensive or impossible to get health coverage, he said. The coverage he was able to get under the law made it possible to get a heart transplant that saved his life.
Vik Verma, of Merrill, said that after a 2017 car accident broke his ankle and hip, he had to recover while on a ventilator. Although he fully recovered, he said, the cost of his medical care was billed at $450,000.
“I only had to pay $3,500 out of pocket because I had an ACA plan,” Verma said. “So it saved my life and it saved my finances.”
Ensuring health care access
Gov. Tony Evers applauded the court’s ruling in a statement shortly after it was announced.
“Health care isn’t just for the healthy and wealthy, and today’s decision is a critically important victory for our work to make sure everyone has access to quality, affordable health care coverage,” Evers said.
Other health care advocacy groups joined in praising the high court’s decision.
Robert Kraig, executive director of Wisconsin Citizen Action, said it offered “a welcome reprieve to millions of Wisconsinites with pre-existing conditions, or without good coverage at work, from losing their health care.”
Kids Forward, a nonprofit policy group that advocates for children and families, called the ruling “an enormous victory for all Americans, including the more than 20 million who were in immediate danger of losing their health insurance in the middle of a once in a generation pandemic.”
In February, after the federal government reopened enrollment in the ACA’s insurance marketplace, 21,000 more Wisconsin residents were among the 1.2 million people nationwide who signed up for ACA plans, according to Kids Forward.
In a statement issued by the Committee to Protect Health Care, Bob Freedland, a physician and ophthalmologist in La Crosse, said he was “relieved” that the decision left the ACA intact. In his 40 years of practice, Freedland added, “I saw firsthand the difference the ACA made in helping patients, friends and neighbors who had put off doctors’ visits and treatments finally access the care they needed.”
Making things better
While advocates said they were grateful for the decision, several also said they hoped to see health policy evolve in Wisconsin and nationally, with the health care law as a starting point.
Kids Forward said the ruling should spur “federal and state policymakers to earnestly address the deep health inequities that plague our country and our state and make all of us more vulnerable to public health crises, such as the coronavirus pandemic.”
Both Kaul and Kids Forward took the occasion to reiterate the gains that Wisconsin would see by expanding BadgerCare, which provides health care services for low-income people through the state and federal Medicaid program.
As part of the ACA, states can expand their Medicaid programs to cover more people with incomes from 100% to 138% of the federal poverty guidelines. The federal government would subsidize 90% of the cost of the expansion. Wisconsin has refused the expansion since it was first instituted.
The American Rescue Plan Act (ARPA) passed earlier this year in response to the pandemic offers an additional bonus to states that haven’t accepted Medicaid expansion; that would provide Wisconsin an additional $1.6 billion.
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Despite repeated urging from Evers, Democratic lawmakers and outside groups, Republican leaders in the Legislature have said they will not agree to the expansion.
“The Affordable Care Act is here to stay, and it’s time that Wisconsin policymakers embrace the full power of the law by expanding Medicaid coverage through BadgerCare,” Kids Forward stated Thursday. “Expanding BadgerCare would mean 91,000 Wisconsinites would have access to more affordable, comprehensive health insurance and would reduce Wisconsin’s share of Medicaid spending by hundreds of millions [of dollars] per year.”
Kaul made the same point in the telephone news conference, calling on the state Legislature to reverse course, expand Medicaid, and both save money and cover tens of thousands more people. “Years ago, it was clear that that was important,” Kaul said. “But the pandemic has really highlighted how critical it is that as many Wisconsinites as possible have access to affordable health insurance coverage. So it’s time to expand the coverage that’s in place.”
The attorney general also called for further expanding health coverage access through changes to the ACA. One place to start, he said, was with provisions in ARPA that temporarily increased subsidies for individuals buying health insurance through the federal marketplace, making it yet more affordable. “We need to make that expansion permanent.”
How Wisconsin switched sides in ACA battle
In their reactions to the ruling, both Kaul and Evers observed that after they were elected in 2018, Wisconsin flipped from supporting the lawsuit attacking the ACA to opposing it.
The Texas attorney general filed the lawsuit in February 2018, charging that the ACA violated the U.S. Constitution. The action was joined by Republican attorneys general from 19 other states, including Wisconsin.
“That suit was a waste of taxpayers’ money,” Kaul said Thursday.
A federal judge upheld the Texas lawsuit, invalidating the ACA in December 2018. A year later an appeals court sided with the ACA’s challengers; the Supreme Court took the case in March 2020, hearing arguments in November just after the 2020 election in which President Donald Trump lost to former Vice President Joe Biden.
Running in Wisconsin’s 2018 election, both Evers and Kaul vowed to pull Wisconsin out of the lawsuit. Before they took office in January 2019, the Republican majority in the state Legislature passed legislation in a lame-duck session to bar the incoming governor and attorney general from withdrawing without the Legislature’s approval.
When a lower court temporarily struck down the lame-duck provisions, Evers and Kaul dropped out of the case, and Evers stated Thursday he was “proud” that he had followed through on his campaign promise.
Having withdrawn from the plaintiffs’ side in the lawsuit against the ACA, Wisconsin was one of a handful of states to file a friend-of-the-court brief in the case to support the health care law.
“Ultimately, because of those actions, the state of Wisconsin was on the right side of this case, and we were one of the states that supported today’s outcome,” Kaul said.
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