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The ACA is now embedded in U.S. health care — and its legality is still in question

Since it was first created during the Obama administration, there has been no end to the fight over the Affordable Care Act, commonly known as Obamacare. The battle continues to play out on the campaign trail and in the courts, where a recent federal appeals decision struck down the law’s individual mandate. William Brangham reports and talks to Julie Rovner of Kaiser Health News for analysis.

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  • John Yang:

    Since its creation, there has been no letup in the fight over Obamacare.

    As William Brangham reports, a federal appeals court has likely ensured it will be an issue in the 2020 campaign and beyond.

  • William Brangham:

    That's right, John.

    A federal appeals court struck down the individual insurance mandate. It was a key part of the Affordable Care Act. But the court avoided making a broader decision on whether, in the absence of the individual mandate, the entire law should be invalidated.

    Instead, the judges kicked it back to a lower court in Texas to look at that question again.

    Most observers believe Obamacare will eventually make its way back to the Supreme Court for a third time, but likely not before the coming presidential election.

    Julie Rovner of Kaiser Health News is here to help us understand what this all means.

    So, what does all of this mean? The court says, OK, the mandate is a no-go. What does this mean?

  • Julie Rovner:

    Well, what it means now for people who are covered under the federal health law is not very much, because everybody says that it will continue to be enforced until this is resolved.

    Basically, what it does, though is, as you say, it creates a lot more uncertainty for the law. It is possible that the law could be struck down in part or in its entirety.

    What the judge basically found — that the lower court judge had found is that, when Congress changed the law in the 2017 tax bill, it reduced the penalty for not having insurance to zero. What the Republican attorneys general who brought the suit argued was that, without that penalty, it was no longer a tax and, therefore, it was no longer constitutional, because that's how it was found constitutional in 2012, and, therefore, this part is unconstitutional.

    The lower court judge said, if this part is unconstitutional, the whole law is unconstitutional, too. This court said, we're not sure about that. You go back, lower court judge, and do a more careful review of what might be allowed to stay and what would have to go.

  • William Brangham:

    Remind us again just that — this obviously cast a huge cloud of uncertainty over the law itself, but it's not just the 20 million people who rely on getting their insurance directly through the ACA, right?

  • Julie Rovner:

    That's right.

    The ACA has touched all parts of the U.S. health care system. Yes, it's directly responsible for about 20 million people who buy their own insurance through the marketplaces or who get the expanded Medicaid coverage.

    But it also creates a lot of new benefits for people on Medicare, for people on Medicaid. For people with private insurance, now their adult children can stay on their health plans, they can get free preventive care.

    So there are lots of pieces of the health law that are now embedded into the health system. If you tried to take it away, you could make a big mess.

  • William Brangham:

    So we're waiting to see what this court in Texas does.

    Meanwhile, the attorney general of California is part of this multistate sort of protection effort to try to keep the ACA intact. They're trying to push this through the Supreme Court quickly. Right?

    Explain what is going on in that.

  • Julie Rovner:

    That's right.

    This is Attorney General Xavier Becerra from California, who said last night that he planned to go straight to the Supreme Court. It's not a sure thing that the Supreme Court would take this case at this point, because it hasn't finished in the lower courts.

    But what he's going to argue is that this uncertainty is untenable and that the court really does need to take it up right away. And it is possible for the court to take it up right away, perhaps as soon as before the election, although that would seem to be kind of a long shot.

  • William Brangham:

    So the idea, is, though, if they think that they have a better shot in the Supreme Court now, because is Supreme Court thus for has, for the most part, upheld the ACA?

  • Julie Rovner:

    Well, there are the four, you know, liberal justices who they clearly would have and then John Roberts, of course, is the one who has upheld the law twice now.

    He was the deciding vote in the 2012 case, who said that, because it's a tax, that it's constitutional. So I think they're betting that maybe they would get the four liberals and John Roberts. And who knows, if they wait a couple of years, what the court will look like.

  • William Brangham:

    One of the reasons we love talking to you is because the policy so well, but you also know the politics of all of this.

    This certainly seems to force this right back into the presidential election. How do you think this shakes out? Is this a positive for the Republicans or the Democrats, or both?

  • Julie Rovner:

    It's a little bit of a draw.

    Had the judge agreed fully with the lower court judge and said that the entire law is unconstitutional, then I think the Republicans would have had a big problem, even though it wouldn't have taken effect until it goes to the Supreme Court.

    That would have been a much easier case for the Democrats to make that Republicans are trying to get rid of this law. They can still make that case, to some extent, but this is a little bit muddier. I think it will still be an issue going into the general election, though, regardless of whether the Supreme Court has this case before it this year.

  • William Brangham:

    We certainly are seeing the Democrats debating not just the protection of the Affordable Care Act, but the expansion thereof.

    Let's turn to another issue, which is this — the concern over the high cost of prescription drugs. The HHS secretary just announced that they are going to start allowing states and some pharmacies and some other groups to import drugs from Canada.

    What is this? What's the proposal and what's the idea?

  • Julie Rovner:

    This is a 20-year fight. And it's been bipartisan the whole time.

    Republicans — some Republicans have wanted to do it. Some Democrats wanted to do it. The idea is to basically import other countries' price controls. You get cheaper drugs from countries that have price controls.

    Bipartisan commissioners of the Food and Drug Administration have said, not safe. We don't really know where these drugs come from. If you go into a pharmacy in Canada and buy drugs, it's going to be safe. But if you're importing it through the mail, you don't really know what you're getting.

    This is the first time in administration has said, we're going to see if we can try this.

    But it's very early. It's not clear whether Canada would go along with this and allow their drugs to be…

  • William Brangham:

    They not so eager, necessarily, to be our drugstore.

    (LAUGHTER)

  • Julie Rovner:

    They are not. They don't have enough drugs to supply the United States.

    So it — but it's definitely one of those issues that both sides are trying to court voters on. And drug prices are a big political issue going into 2020.

  • William Brangham:

    Is it a function of simply courting voters? Or is this, realistically, going to be meaning cheaper drugs for people soon?

  • Julie Rovner:

    If you could make it work, but, obviously, there are not enough drugs in Canada to supply the United States.

    We're a much larger country.

  • William Brangham:

    So I have heard.

    Julie Rovner of Kaiser Health News, thank you.

  • Julie Rovner:

    Thank you.

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