Obamacare Returns as Galvanizing Issue After Ginsburg Death, Barrett Nomination

WASHINGTON — Less than six weeks before the election, the death of Justice Ruth Bader Ginsburg has injected fresh urgency into an issue that had dropped down the list of voter priorities this year: the future of the Affordable Care Act.

The Supreme Court is scheduled to hear arguments Nov. 10 in a case, which the Trump administration has filed briefs supporting, that seeks to overturn the law. President Donald Trump’s nomination of Amy Coney Barrett, who has criticized the court’s 2012 decision to uphold it, increases the chance of that happening.

Liberal advocacy groups are using the prospect to whip up new advertisements declaring that Trump “wants to rush a justice onto the court who will repeal our health care,” as one says. Democrats in Congress have sprung into action with news conferences and pep talks to campaign volunteers featuring people with preexisting medical conditions who were able to get coverage because of the law. Joe Biden’s campaign, too, made clear upon Ginsburg’s death that it would frame the court fight largely as one about health care.

Even if Democrats have little chance of blocking Barrett’s confirmation, they are hoping to reignite the public passion to protect the law that helped Democrats recapture the House in 2018, a year after Republicans in Congress came close to repealing it. This time, party leaders are quick to point out, the election is coming amid a pandemic that has left many Americans requiring expensive medical care, including for potentially long-term health problems that insurers could refuse to cover if the law and its protections with people for preexisting conditions were repealed.

“That was the issue that drove the 2018 campaign so substantially; it came right after a very, very clear threat,” said Chris Jennings, a longtime Democratic strategist on health care who is advising Biden’s campaign. “This time, the fear of a takeaway was not as great. But now it’s reengaged and credible.”

The number of uninsured people in the United States decreased by 20 million from 2010 to 2016 as the ACA went into effect. Its major provisions include allowing states to expand Medicaid to cover more low-income adults, setting up insurance markets where individuals earning less than about $51,000 a year can get subsidies to help pay their premiums and barring insurers from placing annual or lifetime limits on how much care they would cover. But 42% of Americans still view it unfavorably, according to one recent poll, likely including many middle-class families who earn too much for the law’s financial assistance and find the high level of coverage it requires unaffordable.

Trump, attempting to neutralize the threat to his campaign posed by the preexisting conditions issue — one that affects as many as 133 million Americans — signed an executive order Thursday declaring it is U.S. policy for people with preexisting health conditions to be protected. But he offered no details on how he planned to assure that while also seeking to invalidate the ACA. His own Justice Department filed a brief in June asking the Supreme Court to overturn the entire law, including its preexisting conditions protections.

Barrett wrote an academic article in 2017 questioning a Supreme Court decision that upheld the law in 2012. She also signed a petition in 2012 protesting the law’s requirement that insurance plans offered by most employers cover contraception; the Trump administration has since expanded exemptions to the rule, a move upheld by the high court.

In the weeks before Ginsburg’s death, poll respondents listed health care below the economy and the coronavirus response as an issue of importance to them. A poll conducted in early September by the Kaiser Family Foundation, a nonpartisan health research organization, found that only 10% of registered voters considered health care the most important issue in deciding their vote for president. In an NBC/Wall Street Journal poll conducted shortly before Ginsburg’s death last week, 24% listed health care as a top issue, compared with 40% for the economy.

With most voters already firmly in Trump’s or Biden’s camp — and the election a referendum on Trump more than any one issue — it is not clear how much the court vacancy will change the equation, even around the margins. But Democrats are not alone in seeing the vacancy as a potential flame to reignite fervor for protecting the law and especially its most popular provision: protecting people with preexisting conditions from getting charged more or rejected by insurance companies.

Trump on Thursday devoted a speech in North Carolina to the subject, leaning into a much-repeated promise to continue protections for people with preexisting conditions by issuing an executive order, a largely symbolic document that does not have the teeth of legislation. People priced out of coverage by the law cannot benefit from those protections anyway, his aides told reporters on a briefing call before the speech.

That argument should resonate with people like Rafael Gonzalez, an independent voter who owns a small landscaping company in Miami. At 53, he is uninsured after deciding he could not afford the $700 monthly premiums for the plans available to him under the law. He does not qualify for federal subsidies to offset the cost because his income is over the cutoff, making him just the type of voter whom Trump health officials are targeting when they point out that the Affordable Care Act protections are meaningless to people who can’t afford to buy insurance.

Yet Gonzalez is leaning toward supporting Biden, not least because he does not want the law to be completely wiped out.

“Maybe Obamacare is not perfect, but it’s only a start,” Gonzalez said in an interview this past week. “Trump is trying to terminate Obamacare, but he hasn’t shown another plan. He does not inspire any confidence in me.” In North Carolina, one of the most hotly contested states in the presidential race, another undecided voter, Taft Turner, 59, of Greensboro, said the court vacancy made him more likely to choose Biden over a third-party candidate. He had already ruled out Trump and has been wavering on Biden, he said, in part because, as a Black man, he felt let down by both major parties.

“That seat concerns me a great deal,” said Turner, a cancer survivor, adding of the possibility of the court overturning the law, “What’s important enough to gain by doing something that would harm so many people?”

Democrats are intent on using the ACA to gain advantage in Senate races across the country, especially against vulnerable Republican incumbents like Thom Tillis in North Carolina, Martha McSally in Arizona and Cory Gardner in Colorado — who has run an ad promising to protect preexisting conditions even though he voted in 2017 to repeal the Affordable Care Act. Protect Our Care, a liberal advocacy group focused on preserving the health law, is preparing to run television ads in all three incumbents’ states warning that they want “to rush a justice onto the court who will repeal our health care,” after digital ads this week.

Similar ads are running against Republican senators in tighter-than-expected races in Alaska, Iowa, Georgia, Montana, South Carolina and Texas. Winning both the White House and the Senate, where Republicans currently hold a three-seat majority, could allow Democrats to fix the law in a way that might help save it from being overturned by the Supreme Court, by reinstating a financial penalty for people who go without health insurance. The crux of the legal case is that when Congress zeroed out the penalty in 2017, the law’s requirement that most Americans have insurance became unconstitutional, and that without that mandate the rest of the law could not stand. The issue of the health law aside, Joel White, a Republican strategist, said he thought the court vacancy would actually help Republicans in tight Senate races “where their base is looking for a reason to be excited,” and in conservative states like Georgia and Montana “by motivating partisans.” More important, he said, the vacancy could galvanize evangelical voters who may otherwise have been reluctant to vote for Trump.

James DiPaolo, an independent voter in Jacksonville, Florida, said he had been considering voting for Biden — even though he dislikes the Affordable Care Act’s requirement that insurance plans offer comprehensive coverage, which can make them more expensive — because Trump “says things that are atrocious.” But the court vacancy he said, has changed his calculation because he is a devout Catholic and “big fan” of Barrett.

“Her being a woman of faith, that’s important to me,” DiPaolo, 36, said of Barrett, who is also Catholic.

DiPaolo did point to one piece of the health law that he strongly supports: its protections for people with preexisting conditions. His grandfather had diabetes, as does his father, he said, adding, “I’m hoping it skips me, but I don’t know, so I think protections for that are key.”

He did not connect a vote for Trump with the possibility of losing those protections.

“I don’t see him getting rid of that,” he said.