The Affordable Care Act came under existential attack the minute it was signed into law. Almost immediately, a slew of Republican state attorneys general rushed to the court house to have the law struck down on the grounds that its individual mandate to purchase insurance was unconstitutional. Less noticed but just as consequential was a sidecar challenge to the law’s mandatory Medicaid expansion, arguing that it violated states’ rights.
When the case (known as NFIB v. Sebelius) reached the Supreme Court, it split the polarized justices. Four conservatives were ready to toss out the law entirely, four liberals were bent on saving it. In an apparent tacit compromise, Chief Justice Roberts agreed to provide the fifth vote to uphold the mandate as a tax, while liberal Justices Breyer and Kagan joined the majority in striking down the mandatory Medicaid expansion.
This was hailed as a victory for Obamacare, but the under-noticed Medicaid ruling has had dire consequences. The Court’s decision opened up a “Red State Option,” and nineteen conservative-led states have opted not to expand their Medicaid programs to cover the near poor, ostensibly out of sheer partisan spite. This has blocked 2.5 million people from obtaining insurance.
I point this out because a pair of Republican senators are proposing a large-scale version of the Supreme Court’s compromise today. In order to replace Obamacare, Sens. Susan Collins of Maine and Bill Cassidy of Louisiana would create a sort of Red State Option on Steroids, allowing states to opt out of Obamacare entirely if they so choose. As Vox’s Sarah Kliff explains:
The Patient Freedom Act would, as described by Sens. Cassidy and Collins, give states three options:
- Continue to run the Affordable Care Act as is without any changes
- Switch to a different health insurance expansion that emphasizes auto-enrolling all uninsured residents into a federally subsidized catastrophic plan
- Offer no coverage expansion at all, and the state would lose the money it currently receives for insurance subsidies and Medicaid expansion
Under Option 1 (let’s call it the “Blue State Option”), progressive states such as California and New York that like Obamacare can keep it. Or at least, they can keep most of it—Cassidy-Collins would impose a 5 percent cut on subsidy payments to Obamacare enrollees.
Under Option 2 (the “Red State Super-Option”), conservative states like Texas and Kansas can ditch Obamacare entirely and opt into a not-yet-fleshed-out conservative replacement plan. Cassidy and Collins haven’t yet fully formed what this replacement looks like, but it will involve auto-enrollment of the uninsured into high-deductible catastrophic insurance plans attached to health savings accounts. The money that would have been spent on Obamacare subsidies in these states will be redistributed into these HSAs based on each individual’s age, rather than income.
Option 2 will tend to disadvantage low-income individuals, because it abandons Obamacare’s means-tested subsidies. And it also undercuts the GOP’s current main objection to Obamacare: its high out-of-pocket costs. With high-deductible plans, enrollees aren’t really insured at all until they first rack up thousands of dollars in medical expenses, and must self-fund everything else with their own savings. This will aggravate healthcare-induced financial strain, not alleviate it. For that reason, HSAs tend to be virtually useless to all except the wealthy. Even so, Option 2 is a revealing look at the true conservative impulse of what right-leaning health reform would look like.
Option 3 is essentially a State of Anarchy Option. As health economist Aaron Carroll says, “I have no idea why any state would choose [this option].” This option would appeal only to states looking to mindlessly blow up the healthcare coverage expansion (there may be some…), but would otherwise seem to solely exist to prod states toward choosing one of the other two options so as not to lose federal money.
Under all three options, the ACA’s taxes are left in place—a concession sure to rankle congressional Republicans. Annual and lifetime limits will stay, too, as will the ability of children to stay on their parents’ insurance until turning 26, and the prohibition on insurers excluding patients with preexisting conditions.
The Cassidy-Collins plan is plainly meant as an attempt to craft a bipartisan way out of the Obamacare repeal fight. Republicans need eight Democratic votes to enact any replacement plan, and Sens. Cassidy and Collins hope that Democrats might settle for kicking the Obamacare decision down to the states.
For Democrats, the only reason to support this idea is because saving Obamacare in blue states is better than not saving it at all. It’s a sort of second-best option that at least protects individuals in Democratic-led states.
But Cassidy-Collins will also amplify healthcare polarization from state to state. The Medicaid expansion has already shown that some states will almost certainly not make this decision based on legitimate policy considerations around how best to expand health insurance. The issue of healthcare has become too partisan, with the ACA serving as an avatar for anti-Obama resistance. Perhaps that resistance will finally defuse now that Obama has left office, but Cassidy-Collins certainly gives the states the opening to widen the geographic gulf in our healthcare system.
And of course, the most vulnerable will be the ones who suffer. As Topher Spiro of the Center for American Progress writes, “It’s unconscionable that access to quality health care would depend on where you happen to live.” Cassidy-Collins puts the decision about who deserves health coverage in the hands of state elected officials, who are disproportionately conservative Republicans skeptical of universal healthcare in much of the country.
Perhaps the most significant outcome of Cassidy-Collins is that it signals that there is a cohort of Republican senators who are serious about committing to a replacement plan before killing Obamacare altogether. Collins has already said that Republicans must have at least a “detailed framework” for a replacement before repealing the law. Her vote is one that Republicans need in order to move in any direction on healthcare.
But Cassidy-Collins is also telling in other ways. By punting the repeal fight to the states and presenting them with a menu of healthcare options, the proposal creates a sort of Choose-Your-Own-Adventure Federalism. In a country growing increasingly divided by politics, Cassidy-Collins embraces polarization in policy.
Contrary to Obama’s 2004 convention speech, there clearly are Red States and Blue States when it comes to health policy. Federal health policy ought to serve as a floor to guarantee certain rights and benefits regardless of state politics. But the so-called “compromise” bill in the Senate would abscond from that duty and instead only heighten our political divide. Whether or not it is a tenable compromise, the fact that such an outcome is viewed as a plausible off-ramp speaks volumes about the state of our politics.