October 22, 2020

New SCOTUS conservative bloc could overturn ACA, with big impacts on NM

Laura Paskus

The U.S. Supreme Court.

If the U.S. Supreme Court overturns the Affordable Care Act during the 2020-2021 judicial term, the result for New Mexicans could be catastrophic, according to various officials and experts.

The Supreme Court is scheduled to hear California v. Texas on November 10. If Judge Amy Coney Barrett is confirmed by the U.S. Senate on Monday, as is expected, this will be among the first cases she will hear as a Supreme Court justice. If she is confirmed, she will create a new 6-3 conservative bloc on the court bench which could lead to a ruling that the entire ACA is unconstitutional.

If this happens, 20 million Americans could lose health insurance coverage, according to a report by the Urban Institute, a Washington, D.C.-based think tank. But Russell Toal, New Mexico Superintendent of Insurance, said repealing the ACA would “disproportionately affect New Mexico more than most states.”

He said that nearly 300,000 would lose Medicaid coverage immediately and an additional 800,000 to 900,000 would lose protections for preexisting conditions.

Pre-existing conditions could range from asthma to a previous COVID-19 diagnosis, Toal said. Individuals with a history of cancer or who have diabetes or high blood pressure could all lose coverage.

“All would be grounds for insurance companies to say they will not cover you or they will charge you much more money,” Toal said.

Nicole Comeaux, New Mexico Human Services Department Medical Assistance Division director, said that if the court rules that the ACA is unconstitutional, approximately one in five New Mexicans would go without health insurance coverage.

An additional approximate 30,000 residents who currently receive subsidies to pay for premiums and copays would go up, Nicolas Cordova, an attorney with New Mexico Center on Law and Poverty, said.

Also, extension of dependent coverage for individuals who are under the age of 26, enabling many young people to remain on their parents’ insurance plan when they graduate from college and enter the workplace, would also be eliminated, Toal said.

The economic impact would also have an effect, officials said.

“Underpinning the insurance model is the aspiration that healthy people will participate. But if they do not participate because it is too expensive, because there is not affordable coverage, then costs go up for everyone else,” Cordova said.

There is another statewide economic impact, Comeaux said.

“The Medicaid expansion resulted in $1.74 billion in federal (annual) revenue to the state,” Comeaux said.

The healthcare industry in New Mexico has grown since the beginning of the ACA in 2013.

According to a report produced by the Bureau of Business and Economic Research at the University of New Mexico in 2016, the ACA and the state’s Medicaid expansion led to “sharp increases in total person income.”

Medicaid transfer payments accounted for between 24 percent and 46 percent of increases in total person income for New Mexicans beginning in 2014, according to the report.

The report said that Medicaid expansion resulted in an increase in demand for health care services and the direct payments to providers, which resulted in the hiring of additional staff and purchasing more supplies and equipment.

“Many providers rely almost entirely or the majority of their practice relies on reimbursement for Medicaid,” Comeaux told NM Political Report. “The decrease in membership in Medicaid rolls will result in a significant revenue decrease. The economy will be hit hard by this decrease.”

California v. Texas

The case, California v. Texas, asks the Supreme Court to consider three questions, Cordova said.

The first is the constitutionality of the individual mandate. Secondly, if the court rules the individual mandate is unconstitutional, then the next question the justices will have to consider is whether the rest of the ACA should be considered unconstitutional as well, Cordova said.

The third question before the court is how much of the ACA can the court save, Cordova said.

“On the less extreme end, it is totally reasonable to assume to hope that the Supreme Court doesn’t tear down the entire ACA, just rule on the very narrow issue of whether the individual mandate is unconstitutional,” Cordova said. “On the extreme end, they could rule that the individual mandate is unconstitutional and then the entire ACA must fall.”

The individual mandate is the penalty imposed on Americans when they didn’t have health insurance coverage that didn’t meet specific requirements, Cordova said.

In the past the Supreme Court has ruled that the individual mandate is a tax but in 2017 the U.S. Congress reduced that tax.

“If there’s no tax, the challengers are saying the entire individual mandate must fall,” Cordova said.

A new conservative bloc

While Barrett declined to answer questions from individual members of the Senate Judiciary Committee last week during her confirmation hearings about where she stands on the ACA, Cordova said her legal writings while she was a law professor at the University of Notre Dame provide insight into her opinion.

“Her past writings as a law professor have indicated that she’s quite opposed (to the ACA). She thinks the ACA is unconstitutional and that previous decisions by the Supreme Court defending the ACA were wrong,” Cordova said.

There is a chance, Cordova said, that Barrett could be the deciding vote on the California v. Texas suit.

“The deciding vote is no longer (Chief Justice John) Roberts who helped defend the ACA in 2012. The deciding vote is much more conservative. It might be (Justice Samuel) Alito, (Justice Brett) Kavanaugh or Barrett. It is definitely a shift to the right,” Cordova said.

Even so, the New Mexico Center on Law and Poverty is hopeful that Barrett, if she is the deciding vote, will weigh the larger costs when ruling on the case.

“Our hope is that (if Barrett is confirmed) she will look at these potential impacts – over 300,000 New Mexicans that might lose coverage and $1.5 billion in federal funding that would go away, costing New Mexicans thousands of jobs and massive service cuts. Our hope is she’ll see all these impacts and pare back how far to the right she is on this issue,” Cordova said.

Rural hospitals

If the ACA is eliminated, rural hospitals and providers in New Mexico could be especially hard hit, experts said.

Cordova said rural providers would be “drastically harmed.”

He said that if the $1.5 billion in federal funding the state receives each year to cover Medicaid expansion is eliminated, that will have an impact on rural hospitals and providers. He said there will be “massive service cuts.”

“Patients will have to travel miles and miles for treatable conditions and if they don’t want to make that trip, those treatable conditions could turn into emergencies and we don’t want to see that, especially during a pandemic,” Cordova said.

The Supreme Court likely won’t make its decision on California v. Texas until sometime next year, but most epidemiologists predict the pandemic won’t end until at least next summer.

“It’s important to keep in mind we’re in the middle of a pandemic,” Cordova said. “We should expect our leaders to protect our existing coverage. Over 200,000 have died (from COVID-19 related illness) and millions have lost jobs.”

Cordova said the potential for the Supreme Court to eliminate the ACA is a Black Lives Matter issue.

The ACA helped to close racial disparities in coverage, he said.

“Whether we’re looking at African-Americans, Native Americans or the Latino community, the ACA went a long way in closing that gap in coverage,” he said. “During this pandemic, these communities of color disproportionately are affected by this virus.”

Eliminating the ACA would exacerbate the impact of the COVID-19 pandemic on communities of color, he said.

According to a Kaiser Family Foundation report, people of color are more likely than whites to live in families that are low-income and have jobs that do not offer employer-based health insurance.

“If we are truly dedicated to racial justice, we shouldn’t be actively fighting to get rid of their coverage but should be actively looking to expand that coverage, to protect the existing one and build upon it,” he said.