What’s Next for the Affordable Care Act: Life after King v. Burwell

This blog originally appeared on the Health Affairs website

In the not-too-distant future, the U.S. Supreme Court’s 6-3 decision in King v. Burwell will be viewed as a significant turning point for the Affordable Care Act (ACA). Simply stated, the ACA is not only the law of the land–it will remain the law of the land. And I believe that the Court’s decision foreshadows an end to the contentious and partisan fights about the ACA’s existence–and that, slowly but surely, a search for common purpose on health care will begin among conservatives and progressives, Republicans and Democrats.

To be sure, this change will not occur overnight. As their reactions to the Court’s decision show, the Republican presidential candidates will continue to demonize the ACA. And there will likely be additional congressional debates about pieces—or the entirety—of the ACA. But continued efforts to overturn the law are losing credibility, and the Court’s decision makes those efforts look increasingly pointless.

After more than 50 unsuccessful congressional votes to repeal the law, and after two Supreme Court cases that could have invalidated the law or undermined its implementation in states across the country, the ACA has survived. Future congressional debates about the ACA, and pending litigation about the law, do not pose the same kind of threat that they did before the Court ruled on King v. Burwell.

As I listened to Justice Antonin Scalia’s vituperative dissenting opinion, it sounded like he too recognized that opposition to the ACA is coming to an end. While decrying the majority’s “jiggery-pokery”¹ and “[p]ure applesauce”²  interpretation of the law and sarcastically calling the ACA “SCOTUScare,”³  he seemed resigned to the fact that future legal attacks on the law would be futile. He lamented that “the overriding principle of the present Court [is]: The Affordable Care Act must be saved.”⁴

The Affordable Care Act’s record of accomplishment

The ACA’s increased stability, however, is not simply the result of judicial interpretation, politics, or serendipity. Its stability also reflects significant accomplishments and reforms.

Because of the ACA, the uninsured rate has decreased by more than one-third.⁵ People with pre-existing conditions are no longer denied insurance. Millions of young adults have secured coverage through their parents’ health plans. People with major illnesses or disabilities are no longer at risk of running out of coverage due to annual or lifetime limits. And the law has contributed to the deceleration of health care costs.

These are major accomplishments, and recent surveys by nonpartisan research organizations demonstrate that the consumers who benefit from these improvements very much like them and do not want them taken away.⁶ All of this adds to the law’s stability and makes it less and less likely that the ACA will be repealed or undermined.

The challenges for health coverage and care that remain

As we move away from partisan confrontation and toward bipartisan cooperation, there are numerous improvements in health coverage and care that should receive increasing attention. They include:

• Improving the value of the care we receive: Bipartisan cooperation should focus on keeping health care prices down; improving the quality of care and care delivery; avoiding unnecessary, wasteful, and potentially harmful care; and ensuring the availability of high-quality, transparent information about the most clinically effective—and cost-effective—care. This will reduce families’ out-of-pocket costs, improve the financial status of federal and state budgets, and prevent the crowding out of education and other vital social services.
• Closing the coverage gap that harms the poor: There are still 21 states that offer no health coverage to adults with incomes below the federal poverty level. But 10 Republican governors have approved Medicaid expansions, with strong support from health insurers, hospitals, and business groups, as well as consumer advocates. With bipartisan cooperation in the remaining states, 3.7 million more people can gain access to high-quality, affordable health coverage and care.⁷
• Eliminating the “family glitch”: One of the glaring shortcomings of the ACA is how it prevents some working families from receiving premium tax credits to buy insurance in the health insurance marketplaces. When a worker is eligible for job-based insurance that can cover his or her dependents, if the cost of insuring just the worker is deemed affordable, the worker’s dependents cannot receive premium tax credits to help them buy individual insurance. Bipartisan efforts should focus on ensuring that working families are not subject to this discrimination.
• Ensuring that out-of-pocket costs are affordable: As a recent Families USA report documented,⁸ more than one in four people who had year-long coverage through the private individual insurance market were unable to get needed care because they could not afford the out-of-pocket costs, particularly the high deductibles. Improved insurance designs can help ameliorate this problem by exempting key health services, such as primary care visits and medicines for people with chronic conditions, from deductibles. In addition, stronger protections are needed so that consumers are not limited to inadequate networks of care, which potentially expose them to high charges, and so that they are not forced to pay unexpected medical bills when they go to an in-network facility but the providers at the facility are not in the consumer’s plan.
• Advancing equity in health and health care: The ACA has reduced comparative gaps in health insurance rates among communities of color. However, pervasive disparities in health and health care persist based on race and ethnicity. These unequal burdens of health risks and inequitable distribution of health care resources in communities of color must be eliminated so that everyone has access to timely, affordable, high-quality, culturally-competent, and language-accessible care.

By hastening the end of years of contentiousness, the King v. Burwell decision will inevitably increase the opportunities for bipartisan cooperation, opening up the possibilities for health system change that everyone can support.