Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
All the Things You Don’t Realize Are in the ACA and Now Could Vanish
As most people know by now, on
Friday night, a federal judge in Texas relied on a flimsy legal argument to
declare the entire Affordable Care Act unconstitutional. The opinion works a violation of separation
of powers and misapplies settled law. For more on the merits, please see my op-ed with
Jonathan Adler (who opposed the A.C.A. in both previous Supreme Court
challenges, so that should tell you something about the weakness of this
Here, I want to make crystal
clear the jaw-dropping human consequences of the decision.
The A.C.A. is long--2,000+ pages long.And by now many people probably have
forgotten what it was like to get insured before the A.C.A, or mistakenly think
the A.C.A. only helps poor people. The A.C.A. does so much more. It’s time to remember all the things the law
adds, so we know what is now potentially lost and so the appellate courts, the
public and Congress understand what’s at stake.
You probably remember the A.C.A.
has a lot of insurance reforms. But you may not realize that you benefit from
many of these provisions even if you get coverage through your employer and even
if you don’t get your plan on the A.C.A. insurance markets.
Thanks to the decision, gone
would be the following insurance protections, and many more:
insurers could deny or cancel coverage for people with pre-existing conditions in
could now be charged money for insurance more based on your health, gender and occupation.
would be no more prohibition on lifetime limits on health care spending. (Before
the A.C.A. those limits meant insurance only took you so far if you had a very
serious health condition.)
would be no more out of pocket maximum.
would be no more coverage of young adults on parents’ plans up to age 26.
would be no more government subsidies to help you buy insurance.
Here are some other A.C.A. insurance benefits you may now take
for granted and not realize whence they came:
Basic health benefits we assume are always covered--including
maternity coverage and mental health-- could now be denied if you buy your own
insurance or get it through a small employer.
services like cancer screening and contraceptive services will no longer
necessarily be covered--you could have to pay for them out of pocket unless
your state passes a law saying otherwise.
Vaccines for your kids were covered
under the A.C.A., but before the A.C.A. many insurers required a copay and you
now may have to pay for them again.
Well-baby and well-child exams were
covered and now may not be.
could now be charged a co-pay if you go to an emergency room out of network.
would be no more health insurance marketplaces, which allow consumers to see
and compare insurance plans before they buy.
would be no more requirements that large employers offer employees health
then of course we lose the expansion of Medicaid.
Medicaid has already covered some 15
million extra Americans.Even those who
had Medicaid before the A.C.A would lose the advantages of the simplifications
brought by the ACA (those simplifications have increased Medicaid enrollments
even in states that have not expanded coverage). In total, roughly 20 million
fewer people are estimated to lose access to care, including the care Medicaid
provides to treat the opioid epidemic. Children in foster care also would lose
the additional coverage the A.C.A. extended for them as they transition into
The A.C.A made Medicare’s pharmaceutical
benefit a lot more generous-- don’t be surprised now when you need to pay for
your high price drugs.
Medicare preventative care without
Medicare payment reforms would be gone
including the whole new structure of Medicare Advantage.
Essential funding that has expanded the
solvency of the Medicare trust fund so that Medicare continues to be available
into the future would also be gone
A.C.A. also offered advances in public health, which will now be lost,
Loss of the Prevention and Public
Health Fund, which supports community-based programs that tackle social determinants
Loss of the Community Health Center
Fund, which provides about 70 percent of federal grant programs for these
clinics that provide care to 24 million patients, as well as national health service corps scholarships
for thousands of physicians, nurses, and dentists to deploy to the biggest
rural and urban health professions shortage areas.
would be calorie labeling on restaurant menus in most localities.
Gone would be mandatory break time for
would be the reauthorization and reform of the Indian Health Services Act.
good government reforms that make healthcare affordable and accessible would be
gone too, including:
A pathway for the approval and sale of generic
biologic drugs, which would save Americans billions on drug costs.
More tools to help the government
combat health care fraud.
Training for new doctors.
provisions that protect people of all genders from discrimination in health
Take a step back
absorb how much this decision affects.Most
of these reforms have nothing to do with the insurance-purchase mandate the
judge opined was so central to the entire 2,000+ pages of the A.C.A. that
nothing in those pages could function without it. But more importantly,
Congress never said a thing about eliminating all of these provisions-- indeed,
Congress failed more than 50 times in attempts to repeal them. Congress only eliminated
the mandate penalty, leaving the rest of the law still standing. As we have explained, the legal test at issue turns
entirely on what Congress intended.The
judge’s opinion effectively repeals the entire A.C.A. when Congress couldn’t
The A.C.A. affects
all Americans, not just those with lower incomes.Most of us have employer coverage and have
also benefited from the law.Most of us,
with some luck, will be on Medicare and would benefit from the A.C.A’s payment
reforms and expanded drug coverage.Many
of us will need the biologic drugs, or the mental health services, maternity
converge or cancer screening or vaccines that the A.C.A. makes accessible.
course, Friday’s decision will certainly be appealed and so the court’s ruling
is not the final word. And the effects of the decision are most likely to be
paused while any appeal is pending, so the devastating implications of the
decision laid out here are not immediate, and hopefully will never come to
But as Adler and I wrote,
an opinion with these kinds of vast human consequences based on anything other
than rock-solid legal ground is not just irresponsible; it is contrary to the
rule of law.