Biden is back, baby. And that means changes are in store for health care.
After campaigning on a promise to “protect and build on Obamacare,” the Biden administration is likely to make good on several of its healthcare agenda items, such as adding a public health insurance coverage option and making care more affordable by expanding subsidiaries. Many of the harmful policies against women’s health put in place by the Trump administration are also on their way out, but a lingering threat to the Affordable Care Act, known as Obamacare, remains.
Right now, the Affordable Care Act (ACA) is facing its biggest legal battle to date. The Supreme Court, which currently swings to the right 6-3, will have final say over the fate of Obamacare––and the decision is likely to arrive sometime in Spring 2021.
The suit is pushed by a group of 20 Republican-led states and supported by the Trump administration. Democratic states were allowed to step in to defend the ACA after the Department of Justice and the Trump administration took the extraordinary step in 2019 to ask for the law to be thrown out. Overturning the ACA in its entirety would toss out protections for those with pre-existing conditions, no-cost cancer screenings and many more prized provisions of the healthcare law.
While the lawsuit is not the first challenge to the ACA––or the 2nd, 3rd or 10th attempt to repeal it––the case remains open in front of a conservative-leaning court, creating uncertainty that could have major repercussions for women’s health if Republicans are successful and the healthcare law is no more.
The ACA provisions and women’s health
Overturning the ACA has been a top priority for the Republican party since the Obama administration signed it into law in 2010. However, going through the legislative process to do so has been largely unsuccessful. Remember when the late Senator John McCain (R-TX) famously turned his thumb downward to vote “no” on repealing the ACA in 2017? That moment reflected something powerful about Obamacare and its impact on Americans––it’s hard to justify taking it away. By 2017, Republicans had tried and failed to repeal Obamacare more than 70 times, according to Newsweek.
In part, Republicans have failed to repeal the healthcare law because it is so popular. Obamacare ushered in a number of provisions that changed healthcare for millions of Americans, notable by providing protections for those with pre-existing conditions, allowing young people to stay on their parent’s insurance coverage until the age of 26, covering preventive care at no cost, establishing essential health benefits and more.
The pre-existing conditions provision, which ensures that no one can be denied coverage or charged more just because they have a pre-existing condition, is one of the most popular and treasured aspects of the healthcare law. A whopping 79% of people don’t want to see that part of the law overturned, according to a 2020 poll from the Kaiser Family Foundation. Prior to the ACA, 1 in 7 applicants were denied coverage for private market plans due to a pre-existing condition, according to a study published in Health Affairs that examined the ACA’s impact on women’s health.
“To insurers, women’s gender was, in effect, a preexisting condition that signaled the potential for higher health care use and higher costs,” reads a report from the CommonWealth Fund.
The provision therefore led to a significant improvement for women’s health.
“[The ACA] removed the denial of pre-existing conditions, which was particularly important for women because conditions like having been pregnant or being a victim of intimate partner violence were considered pre-existing conditions,” Lois Lee, MD, Associate Professor of Pediatrics and Emergency Medicine at Harvard Medical School and first author of the Health Affairs study, told The Whipp. “So because you had a healthy child in the past, you could be denied healthcare coverage. Coverage for maternity care was not routinely included in some insurance plans, and so women would have to pay extra money for a rider to have health insurance to have a baby. Implementing the ACA improved coverage and care for women.”
The ACA also led to a vast expansion of coverage in the years after its implementation––with women making huge improvements. Namely, the uninsured rate of working-age women between 18 and 64 dropped 39% from 2011 to 2017, Dr. Lee’s study found. Overall, the uninsured rate for the nonelderly population dropped from 17.8% in 2010 to 10.9% in 2019, according to KFF. A big part of that drop came from states expanding Medicaid coverage, but the impact for women has been huge since the barriers for coverage have typically been higher compared to men.
“Women are less likely to be the primary caregiver of the family under which the insurance is obtained,” Lee told The Whipp. “Often they are the secondary subscriber from their spouse, the one who has the employer-based insurance. Women are more likely to work part-time jobs that don’t have insurance included and therefore more likely to lose insurance coverage either through death or divorce or loss of their spouse's employment.”
Higher costs for women
The ACA also offered women the ability to gain insurance coverage by eliminating the gender rating and making care more affordable.
“Because of gender rating, women were often charged more than men of similar age for
the same health insurance plan,” Lee’s Health Affairs study found. “Collectively, women paid an estimated $1 billion more per year because of gender rating, with some plans charging women up to 84[%] more than men.”
Without the ACA, insurance markets could go right back to what they were doing before, charging women more and denying coverage.
“If the ACA is overturned, it is possible that insurers would return to gender rating, denying coverage based on pre-existing conditions, and imposing out-of-pocket limits—all of which were prohibited by the ACA,” Emily M. Johnston, PhD, senior research associate at the Urban Institute, told The Whipp. “This could particularly harm women currently insured through nongroup coverage, such as a plan purchased through the Marketplace. Insurers could also return to not coverage maternity care in such plans, even while charging women higher premiums than men.”
Another key provision of the ACA that lowered the costs for women were the essential health benefits, which covered preventive care and cancer screenings at no cost sharing, as well as contraceptive coverage. This boosted coverage for preventive services for 20.4 million women in 2011. Improvements in cancer diagnosis and treatment have also been connected to ACA policies.
The contraceptive coverage aspect of the ACA has reduced barriers to accessing this care and led to a “marked decrease in out-of-pocket spending on contraception by privately insured women,” the Health Affairs study found. Eliminating the cost sharing is associated with increased use of the most effective uses of contraception and could have a future impact on unintended pregnancy. However, other barriers to reproductive rights in some states make that impact more difficult to nail down.
“It will be hard to know for sure what the ACA’s role is on unintended pregnancy rates over time, but I think we can feel confident about the in-between measure of the use and compliance with long-acting, reversible contraceptive has been beneficial after the ACA,” Lee said.
Supreme Court to decide ACA fate
With all the impacts of the ACA solidifying over the last decade, it’s hard to imagine going back. And yet, that’s exactly what is at stake as the Supreme Court reviews the lawsuit, California v. Texas. The court agreed to pick up the case at the beginning of 2020, and with oral arguments heard at the end of the year, a decision is expected to come sometime this Spring, according to experts.
Many believe the case won’t be successful in overturning the ACA in its entirety. Instead, the Supremes could decide to uphold the healthcare law, as it has done in the past, or even to strike down the individual mandate only, which is the crux of the case.
The individual mandate has been one of the most controversial aspects of Obamacare since the law was written, with opponents arguing it is unconstitutional to require people to purchase health insurance or face a charge.
“The way insurance works is that you cover a large number of people with the idea that only a small percentage will really need to use the benefit,” Lee told The Whipp. “Everybody pays into the plan to be able to cover the benefits that are needed. Without the individual mandate, the concern is that you only have sick people who are going to use all the benefits paying into it, and there's not going to be enough funding to provide all the care everybody needs.”
It’s also a critical part of making Obamacare affordable.
“The individual mandate encourages healthier (and lower cost) individuals who might otherwise forgo health insurance to enroll in and maintain coverage,” Johnstone told The Whipp. “Keeping healthier people in the market helps to lower premiums for everyone, including those with greater healthcare needs and costs.”
However, Republicans have already effectively dismantled the individual mandate after they dropped the penalty for not purchasing insurance to $0 in 2018. This action is what the current Supreme Court case leans on and where the argument gets a little complicated.
In a previous legal challenge, the Supreme Court upheld the ACA as constitutional by stating the individual mandate could be treated like tax. Without the tax penalty, or by lowering the penalty to $0, Republicans argue the entire healthcare law is unconstitutional since the mandate cannot be separated from the rest of the law. One federal judge agreed with Republicans and ruled to overturn the ACA in late 2018. Through a series of appeals, the case has made its way to the Supreme Court.
During the COVID-19 pandemic, some health experts see the legal challenge coming at the worst time, putting millions of Americans at risk of losing their health insurance overnight.
“Now, more than ever—during the worst pandemic in a century—the need for comprehensive and equitable health care coverage is evident,” wrote Michelle H. Moniz, MD, MPH, of the Department of Obstetrics and Gynecology at the University of Michigan, in an article for JAMA. “This is no time for legal challenges to the ACA. We must instead build on its great progress to date.”
And for women’s health, the loss of the ACA means the loss of progress.
“We know that the ACA led to coverage gains for women, which helped them access and use preventive care and improved their self-reported health,” Johnstone told The Whipp. “There is certainly concern that if women lose coverage they will lose access to those services. And privately insured women who have been benefiting from no-cost preventive services would face the choice of paying the out-of-pocket costs charged by their plan for a mammogram or cholesterol screening or skipping that recommended preventive service.”