Baltimore Sun Editorial Board

October 8,2018

Rep. Elijah Cummings says a report he commissioned from the House Committee on Oversight and Government reform shows that if the Trump administration is successful in its legal assault on key provisions of the Affordable Care Act, nearly 170,000 Marylanders could see their premiums skyrocket or could be denied coverage altogether. Hundreds of thousands of older adults and women could be subject to premium increases, too, he argues. Not so, says Rep. Andy Harris. The Trump administration may be joining an effort by ACA-loathing states in litigation aimed at gutting protections for those with pre-existing conditions, but Maryland law contains backup provisions, so no one here is at risk.

So who’s right?

The unsettling reality for those whose lives may have been literally saved by the ACA is that it’s up for debate. Maryland did incorporate elements of the statute into state law, in particular the prohibition on denying someone a policy because they have a pre-existing condition; excluding specific coverage for a pre-existing condition and forbidding insurers from charging a higher premium because of someone’s health status (known as the community rating provision). But it, like several other states, did so in a way that makes reference to the federal law, and it’s altogether unclear what would happen if that’s declared unconstitutional as a result of the GOP lawsuit, known as Texas v. United States.

Sabrina Corlette, a research professor at the Center on Health Insurance Reforms at Georgetown University’s Health Policy Institute who co-authored a Commonwealth Fund paper on the issue after the Trump administration announced it wouldn’t defend those ACA provisions in court, said what would happen to Maryland’s law should the plaintiffs succeed in Texas v. United States is up to interpretation. The bi-partisan support for the law in Maryland might make the issue moot here — Gov. Larry Hogan, a Republican, has defended the ACA and worked with Democrats to shore it up, so it’s likely that his administration would continue to enforce the rules. His opponent, Ben Jealous, could be expected to do the same (unless he’s managed to enact Medicare for All instead). But that’s no guarantee of what some future governor might do, and an insurance carrier could also sue to try to prevent the state from enforcing its law in a post-ACA world.

The issue in Texas v. United States is whether the other provisions of the ACA remain constitutional now that Congress, as part of last year’s Trump tax cuts, has zeroed out penalties for individuals who fail to buy insurance as of Jan. 1, 2019. Those penalties were key to the Supreme Court’s ruling upholding the law, which relied on an interpretation of the mandate as permissible under Congress’ broad taxation powers. Large coalitions of pro- and anti-ACA states are battling it out in that case, and meanwhile, Maryland Attorney General Brian E. Frosh this fall filed a mirror-opposite lawsuit, seeking to get the federal courts to affirmatively declare the law constitutional despite the suspension of mandate penalties. Among the arguments he offers is that just because the penalty is zero doesn’t mean it still can’t be construed as a tax. After all, many taxes established by the ACA have been suspended at one point or another, and this one could always be resurrected later.

We have no idea which side will ultimately prevail, particularly with Justice Brett “what goes around comes around” Kavanaugh now seated on the Supreme Court. And even if Democrats make big gains in November’s midterm elections — no sure thing — it’s unlikely that they will be able to counter the Republican attacks on the ACA of the last two years. Even if Democrats could get a restoration of the mandate through Congress, they would face a near-certain veto from President Trump.

The response for Maryland is fairly simple: Eliminate the language in the state’s health care statutes that refers to the ACA, and then none of this is an issue. Four other states (Massachusetts, Colorado, New York and Virginia) already have laws like that. And in order to make the economics of the ACA work — beyond the good Governor Hogan and General Assembly Democrats have already done with the new reinsurance program they enacted this year — Maryland should join the growing number of states with their own individual mandates. Massachusetts has had one since before the ACA was enacted, and Washington, D.C., New Jersey and Vermont all enacted their own versions this year. Governor Hogan told The Sun’s editorial board last week that he is “willing to take a look” at that idea, and Mr. Jealous has already endorsed the innovative “down payment plan” Maryland health advocates are pushing that would allow uninsured individuals to use the penalty they would owe to help purchase coverage.

Maryland doesn’t have to be captive to the whims of the courts, Congress or the president. Republican and Democratic leaders here are committed to making the ACA work, and they should take matters into their own hands.

Last modified: October 9, 2018