June 29, 2020

Covering COVID-19 is a daily Poynter briefing of story ideas about the coronavirus and other timely topics for journalists, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

A note from Al: I am going to spend the whole newsletter today on the fight over the Affordable Care Act. The U.S. House of Representatives will vote today on a bill to expand it and, perhaps weeks before the November election, the Supreme Court will hear arguments to ditch it. Millions of Americans’ coverage hangs in the balance. I want to help you aggressively cover this issue.

There’s a war over health insurance in the midst of a pandemic. The House votes today.

While America finds itself, once again, in a growing pandemic that has cost an estimated 27 million Americans their employer-sponsored health coverage, late in the evening Thursday the Trump administration pressed the U.S. Supreme Court to overturn the Affordable Care Act. That is the law that provides insurance for 23 million Americans, among other things.

The court will hear arguments this fall, likely just before the November election. That would put a ruling most likely in early 2021, probably after Inauguration Day.

With that dramatic backdrop, the U.S. House plans to vote today on a bill that would expand the Affordable Care Act. The bill has been hanging around Congress for a year but, after the Trump Administration pushed the Supreme Court to consider abolishing the ACA late last week, the battle took on a new urgency. It repositions health insurance as a key election issue for 2020 that separates candidates and political parties.

Can you imagine how concerning it must be for your readers/viewers/listeners to wonder if they are going to lose their health insurance when health issues are on top of everybody’s mind? Can you imagine having lost your job and insurance, getting on Medicaid or turning to the ACA marketplace, and now hearing that the program that makes that coverage possible could be in peril before you find a job that provides insurance for yourself and your family?

A debate that has dragged on for a decade is about to come to flower.

How would overturning the ACA affect you?

At its core, the ACA was designed to create a dependable way for people with lower incomes and without employer-provided plans to afford health insurance.

This graphic, or some version of it, will be before you again and again between now and Election Day as politicians argue about the importance of the ACA. The chart shows the percentage of Americans with some kind of health insurance coverage from 1990 to 2018. Today, a little more than 9 out of 10 Americans have health care coverage.

The percentage of Americans with health insurance coverage from 1990 to 2018. In 2018, 91.5% of all people in the United States had some kind of health insurance. (From Statista.com)

Health insurance rates are still rising, but are rising much more slowly now than when the ACA was first enacted.

(Kaiser Family Foundation)

Critics of the ACA say it has not stemmed the mind-boggling costs of U.S. health care. This month, HealthMarkets reported, “New York insurance companies that sell health plans on the Affordable Care Act marketplace have asked the state Department of Financial Services to raise premiums an average of 11.7% for 2021.”

Kaiser Health data shows:

On a per capita basis, health spending has increased over 31-fold in the last four decades, from $355 per person in 1970 to $11,172 in 2018. In constant 2018 dollars, the increase was about 6-fold, from $1,832 In 1970 to $11,172 in 2018.

What is at issue?

The cases before the Supreme Court are State of California, et al., v. State of Texas, et al. (19-840) and State of Texas, et al., v. State of California, et al. (19-1019).

At the core of the lawsuit is a case brought by the state of Texas. The main point of the lawsuit revolves around the so-called “individual mandate” that requires most Americans to carry some health care insurance coverage or pay a penalty.

The key issue is whether all of the ACA could survive if part of it, like the individual mandate, is struck down.

How we got here

The Supreme Court already upheld the individual mandate in a 2012 ruling that involved 25 states. The court ruled the fines for not having insurance were a tax.

But then, in 2017, Congress enacted an amendment to the ACA that set the penalty for not buying health insurance at zero — but left the rest of the ACA in place. A fine of zero, a number of states said, means it is not a tax, and that means it is not constitutionally valid. A 2018 decision by U.S. District Judge Reed O’Connor agreed with that view and struck down all of the ACA as unconstitutional.

Appeals bounced around the court system and Congress even asked the Supreme Court to get involved, but it didn’t happen. Now it has.

Between 2010 and 2016, Congress considered several bills to repeal, defund, delay, or amend the ACA. All failed. After President Donald Trump won the 2016 election, Congress tried repeatedly and failed to repeal the ACA.

By way of background, only a small percentage of Americans ever paid a fine for not having health care. USAFacts, which collects and shares government data, documented:

In 2014, 5.4% of the population paid the individual mandate fine, a total of 8.1 million people. This was less than the 13.3 million who filed for an exemption. At that time, the minimum fine was $95. In 2015 the minimum fine increased to $395. In that year, 4.5% of the population, or 6.7 million people, paid the fine, with roughly double filing for an exemption.

But in December 2017, the opponents of the ACA achieved some legislative success. As part of the Tax Cuts and Jobs Act, Congress set the “shared responsibility payment” amount — the amount a person must pay for failing to comply with the individual mandate — to the lesser of 0% of an individual’s household income or $0, effective January 2019.

A number of states sought to send the ACA to the legal scrapheap, including:

Texas, Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Arkansas and Wisconsin.

At the same time, other states went to court to try to preserve portions of the ACA, even if other portions were not deemed to be constitutional, including: California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Minnesota.

Since the original filings, some states have dropped out, so this is where the states currently stand. The point is that this is a huge story. It involves virtually everybody who reads, hears and watches your news and it affects the public’s health, families, money and safety.

It is also going to become an even hotter political issue in the coming weeks as Joe Biden and Donald Trump will lay out their positions. Possibly more importantly, candidates for Senate and Congress will have to answer questions about where they stand now in the midst of a pandemic.

(Kaiser Family Foundation)

What about protecting people with “preexisting conditions?”

President Trump campaigned on repealing and replacing Obamacare. He also promised that even if the ACA was repealed, he would be sure that people with preexisting conditions could not be turned down for health care. But ACA is the very legislation that promises that. If the entire act is struck down, there is nothing to replace that guarantee.

Before the ACA, if you had a severe health issue — like cancer, heart issues, diabetes, you name it — you could be denied coverage. Prior to the ACA, some surveys said 70% of people with health problems said it was difficult to find coverage.

What else would be affected by a repeal?

The ACA made huge changes in America’s health insurance laws. Since the ACA went into effect, the number of individuals who are uninsured decreased by 18.6 million from 2010 to 2018.

Today’s young adults and young parents were in middle school when it passed a decade ago.

The act:

  • requires insurance companies to allow young adults to stay on their parents’ health insurance plans until they turn 26
  • prohibits insurers from imposing caps on the value of benefits provided
  • mandates that the insurance plans cover at least 10 “essential health benefits,” including emergency services, prescription drugs, and maternity and newborn care.
  • requires employers with at least 50 full-time employees to pay the federal government a penalty if they fail to provide their employees with ACA-compliant coverage.

The ACA also enlarged the class of people eligible for Medicaid to include childless adults with incomes up to 133% of the federal poverty line.

The New York Times made a list of some things you might not be aware of but are included in the ACA:

The law also includes dozens of provisions that are less well known and not related to the individual mandate.

It requires nutrition labeling and calorie counts on menu items at chain restaurants.

It requires certain employers to provide “reasonable break time” and a private space for nursing mothers to pump breast milk.

It improved prescription drug coverage for Medicare beneficiaries, and it created a new pathway for the approval of less expensive versions of biologic medicines made from living cells.

Let’s simplify what could happen

The Supreme Court has to rule on three issues. The first two have to do with whether the states who are involved have legal standing. It will only take one state or the U.S. House of Representatives to keep the case rolling. Then the court will consider lower court rulings. Then it will rule on whether the individual mandate is valid if it includes no fine. That will lead us to know whether the ACA stands or falls.

Kaiser Health put this into a decision tree to help you follow the case:

(Kaiser Family Foundation)

What is today’s vote all about?

Let’s go back to the top of this column.

The bill that will go up for a vote today would give more money to states for Medicaid, would attempt to lower drug prices for Medicaid patients and — here’s an important one — it includes a pay increase for health care providers who take Medicaid patients.

The bill will also be of intense interest to Kentucky, Maine, New Jersey, New Mexico, and Pennsylvania, which have all announced plans to transition from the federal health care marketplace to state-based marketplaces. Nevada already did this.

HealthAffairs.org pointed out that HR 1425 provides $200 million that states could use for two years, but requires the state marketplaces to be financially self-sustaining by 2025.

States like the idea of running their own marketplaces because they have more control over costs.

Here’s the thing, practically everything in this bill has been floated before, passed the House and died in the Senate. But the timing here is different, during a pandemic, and during high unemployment when workers might be losing coverage. And it comes so close to an election.

What do Americans think of the ACA?

Some polls have looked at what happens when you call ACA by its other name, “Obamacare.” When you adopt the informal name, popularity declines. But when you ask about ACA, Gallup, for example, finds that support is steady and in favor of it.

  • 52% approve of the Affordable Care Act; 47% disapprove
  • 94% of Democrats, 11% of Republicans and 53% of independents approve
  • 78% haven’t had to change doctors nor give up their medical plan
    • 20% say they have gotten coverage for a preexisting medical condition that wasn’t covered before the law was passed.
    • 28% say the ACA allowed them to obtain health insurance after not having it previously.



This data comes from March, just as the COVID-19 pandemic spread in the U.S.

What the candidates say

Joe Biden currently has a plan to expand the ACA. It includes a new public health insurance option that he said would be similar to Medicare, but open to any age.

With just five months before the election, President Trump has not issued a plan for how to reform the Affordable Health Care Act but in September 2019, he promised a plan that he said will be “phenomenal.” After promising to “repeal and replace” the ACA, he said four months ago that he was pulling back from efforts to repeal it. His 2020 budget did include $844 billion in cuts to the ACA over the next decade, but no details on how that would unfold.

Nail candidates down on where they stand on the Supreme Court case and on this legislation. Explain to the public that their health care will not end right away, and that this whole process will take time.

But stay on this story.

We’ll be back tomorrow with a new edition of Covering COVID-19. Sign up here to get it delivered right to your inbox.

Al Tompkins is senior faculty at Poynter. He can be reached at atompkins@poynter.org or on Twitter, @atompkins.

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
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