Eleven years and more than 30 million people insured later, the Affordable Care Act has survived at the US Supreme Court — again.
The justices upheld the law in a 7-2 vote on Thursday, rejecting a lawsuit led by Republican state officials who sought to overturn the law in its entirety based on a shaky legal premise that most legal scholars had scoffed at.
This was the third time that the ACA had faced an existential threat at the high court and prevailed. It might not be a permanent victory — at least one more serious challenge, seeking to invalidate Obamacare’s protections for people with preexisting conditions, is still working its way through federal courts.
But even in the face of constant efforts to overturn it, in the Supreme Court and in Congress, the law has proven remarkably resilient and durable: With each passing year, its provisions become more entwined in the fabric of American health care, benefitting almost every insured person in the country.
At the same time, the problems it has failed to fix have become only more apparent.
The Affordable Care Act’s achievements are clear. People who buy insurance in the individual and small-group markets no longer face discrimination for preexisting conditions. Preventive services for Americans with all types of insurance are free. Combine the marketplaces that provide tax subsidies for private coverage and the Medicaid expansions adopted by 38 states (along with a handful of smaller provisions), and the ACA has provided coverage to about 31 million Americans, according to a new estimate from the Biden administration.
After the rocky rollout of HealthCare.gov in 2014 and a few years of soaring premiums, the law’s private marketplaces have stabilized; now Democrats are trying to expand access to them. Premiums are flat. More health insurers are offering plans. Congress approved an expansion of the law’s tax subsidies to higher-income earners and the Biden administration opened a special Covid-19 enrollment period during which 1 million people have signed up for insurance. States are now starting to set their own public options, giving the idea a new life after it was scuttled during the legislative debate over the ACA.
The politics of health care have changed too. Democrats took a “shellacking” in the 2010 midterms, as then-President Obama put it, after Republicans successfully demonized the ACA as a government takeover of health care before its provisions had really taken effect.
But in 2017, having won full control of Congress and the White House, Republicans failed to repeal the law as promised — unable to overcome public opposition and the discomfort of some of their own members with overhauling a law that, by that point, was providing benefits to tens of millions of people. Democrats pounded Republicans over health care in the 2018 midterms and won back the House, vengeance for their devastating 2010 losses. Polls show the ACA is about as popular as it’s ever been with US voters.
It is a remarkable reversal. But while many Americans may be more protected now from financial catastrophe if they get sick or injured than they were before the ACA, the law did not solve all the problems that ail US health care, and its continued survival is no guarantee that they won’t get worse.
Plenty of work remains to fix health care
For starters, take one of the biggest gaps in the ACA itself: Medicaid. The program’s expansion to cover more low-income adults was supposed to be mandatory for all 50 states, a statutory overreach that was scaled back by the Supreme Court, where two liberal justices joined the conservatives to rule that the expansion must be optional.
As a result, 12 states still refuse to expand Medicaid. An estimated 4 million people who would have been covered by the expansion remain uninsured. Advocates have made progress in conservative territory, whether by legislation or executive action or ballot initiative, but those tools may be exhausted. Missouri voters approved Medicaid expansion in November 2020, but the legislature and governor simply refused to implement it. (Legal action is pending.) The biggest holdout states — Florida and Texas — present practical and political hurdles to expansion.
Some people who purchase private insurance through the law can still face high out-of-pocket costs. Some of the health plans sold on the marketplaces have deductibles as high as $6,000 for an individual or $13,000 for a family — and those are usually the cheapest plans available. Until this year, people who made too much money to qualify for the law’s subsidies had to pay the full cost for their insurance, making it unaffordable for some. (The subsidy expansion passed by Congress this year should help lower their premiums.)
And one core problem remains: While every other developed country in the world enjoys universal (or near-universal) health coverage, 1 in 10 people living in the United States still don’t have insurance.
That number is lower than it was before 2010, when it was about 17 percent. But it is an embarrassing outlier among our economic peers. Americans also spend more of their own money on their health care than people in almost every other country.
The ACA left the large-group plans that cover roughly half of US residents mostly untouched. But surveys show that workers are being asked to pay higher and higher shares of the premiums for those plans and that out-of-pocket obligations for employer coverage are going up. The number of Americans who are considered underinsured — meaning that they do technically have insurance but it would not provide adequate financial protection if they experienced a health emergency — has been steadily rising for years.
The argument sometimes made to justify the unique burden Americans face in paying for their own health care is that the country’s health system is the most innovative and of the highest quality of any in the world.
But America spends more money on health care for worse outcomes than its peer countries, as researchers have noted time and again. On a global index of health care quality and access, the US trails many more socialized systems. Life expectancy has dipped in recent years, ending decades of progress and dropping the US further behind comparable countries.
There is no denying that the high quality of health care available in the United States — for those who can afford it. The US health care industry can undoubtedly be among the most innovative in the world: It was American science that cured hepatitis-C in the last decade. The success of the country’s Covid-19 vaccine development, production and distribution is undeniable.
But prioritizing innovation above all else creates its own problems, leaving US health policy captive to private interests. Congress has steadfastly refused to grant the American government the power to negotiate drug prices, for example, in the face of vigorous, well-funded opposition of the health care industry — a policy with consequences that were clear this month when the FDA approved an Alzheimer’s drug with minimal evidence of its clinical effectiveness. Experts warn the $56,000 drug could bankrupt Medicare, creating an existential threat to the entire health system.
It is an enormous problem, with no obvious solution — and it’s one of many that the Affordable Care Act was never designed to solve.