Patients with Cancer Stand to Lose if Supreme Court Repeals ‘Obamacare’

October 27, 2020
Conor Killmurray

Advocacy Groups | <b>Cancer Support Community</b>

Justice Amy Coney Barrett was sworn in to the Supreme Court on Tuesday. Her vote would be instrumental in deciding the fate of the Affordable Care Act. If it’s repealed during November’s landmark case, many could lose access to cancer screening and treatment.

With the U.S. Supreme Court set to a hear a landmark case on the constitutionality of the Affordable Care Act in November, thousands of patients with cancer stand to not only lose their insurance coverage, but also guaranteed protections for their pre-dispositioned disease and benefits of care.

Commonly known as “Obamacare”, as the act was crafted in part by former President Barack Obama and signed into law in his first 4-year term in 2010, the Affordable Care Act (ACA) was the largest overhaul of the American health care system since the formation of Medicare and Medicaid in the 1960s. Since March 23, 2010, the ACA has granted health insurance to approximately 20 million Americans and has had a wide-ranging impact on all levels of health care.

If the Supreme Court repeals the ACA, 21 million people would be left uninsured by 2022, according to recent projections from the nonprofit Urban Institute. The un-insurance rate among Black and white, as well as Hispanic Americans, would increase by approximately 85% and 40%, respectively. Amounting to 20% of all Blacks and 15% of whites uninsured by 2022 and 30% of Hispanic people.

This would leave thousands of patients with cancer, among the millions, without protection and prevent future patients with the disease from being guaranteed equitable health care.

What Patients With Cancer Stand to Lose

According to the American Cancer Society, approximately 9.7 million people aged 18 to 24 were uninsured. However, by 2018 — eight years after the ACA was passed — that amount dropped to 4.7 million, with studies showing that more young people who had cancer were insured during their treatment after the ACA passed.

“It really allowed access to affordable coverage to a lot of people who previously were trying to buy insurance on the open marketplace as individual consumers,” said Kim Thiboldeaux, the CEO of the Cancer Support Community, a global nonprofit for patient support and navigation. “That cost was prohibitive, and insurance became something that was not accessible to many people. Through the ACA, folks have been able to obtain coverage, cancer screenings, cancer treatments and early detection (of their cancer).”

The ACA included multiple provisions to eliminate cost sharing for recommended preventive cancer screenings for most health care plans and to include requirements for plans and employers to include these. In 2018, researchers concluded that these protections were pivotal in continuing to increase national cancer screenings across the board, along with awareness and non-financial barriers. Moreover, compared with the period before the ACA’s enactment, data show that there are now more age-appropriate treatments for cervical cancer to preserve fertility. Moreover, patients with colorectal cancer are also, now, more likely to receive chemotherapy after diagnosis.

“The ACA created this incredible safety net,” said Thiboldeaux. “A lot of the folks who are calling us on our Cancer Support Helpline® and reaching out to our organization through our affiliates are people who fall through the cracks in many ways. They're not sure how to get coverage, they're not sure what they qualify for.”

“Severability” Of the Individual Mandate

Following former Justice Ruth Bader Ginsburg’s death in September, President Donald Trump moved swiftly to nominate Amy Coney Barrett to fill the vacant position. Barrett's appointment on Monday night creates a conservative majority on the Supreme Court. This could potentially rule in favor of court cases, such as November’s landmark California v. Texas case, that seek to repeal “Obamacare”.

At the heart of the case, Republican representatives from Texas, and a number of other states, are challenging the constitutionality of “Obamacare” after the Tax Cuts and Jobs Act enacted by Congress in 2017 repealed the financial penalty for not carrying health insurance as part of the individual mandate. The plaintiffs in the November case claim that because of the 2017 bill, the mandate is unconstitutional as it could no longer be justified as a tax, which was how the Act was upheld in 2012 after the decision of National Federation Of Independent Business (NFIB) v. Sebelius. Moreover, the plaintiffs are arguing whether the mandate is essential to the entire ACA; therefore, questioning if the mandate is unconstitutional, as is the entire ACA.

“All this was encouraging people to get health insurance because the more people who have health insurance, then the easier it is to sort of spread out the cost among everybody,” said Dr. Susan Dorr Goold, a physician and professor at the University of Michigan Institute for Healthcare Policy and Innovation, in an interview with CURE®.

“The people who need health insurance are the ones who are sicker. And the insurance companies know this. And so, they raise their rates. But if everybody has to, or sort of has to, or is strongly encouraged to have insurance, then you can pool the risk of illness among a large group of people. That's how insurance works.”

Many legal experts, and even some Republicans in Congress, have pointed out that the argument against the ACA brought to the Supreme Court is dubious, claiming that some are unsure of bringing a lawsuit forward as it may be hard to justify who is being harmed by no longer having a penalty for not having health insurance. Moreover, the tax reform law only repealed the tax penalty for not having health insurance, not the mandate that requires individuals to have health insurance. Therefore, defendants representing California, who are defending the ACA as the Department of Justice declined to offer a defense, contend that lawmakers intend to leave the ACA intact aside from this change as Congress often changes laws after they are passed but does not repeal them without a vote.

In the case of Amy Coney Barrett, she has discussed that she believes the argument in Texas is different than NFIB. Moreover, in her nomination hearing, she has spoken in favor to the idea that the penalty repealed in 2017 is “severable” from the ACA. Therefore, she may rule in favor of California keeping all the major components of the ACA, protecting people with pre-existing conditions, which includes a cancer diagnosis.

However, Barrett has previously been critical of the decision in NFIB as well as King v. Burwell believing that Chief Justice John Roberts, who wrote the opinion in both cases, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” In the recent nomination hearings, Barrett has cited these comments as her opinions while being a law professor, and that she could rule differently depending on the case presented to her. This has raised concerns about future cases looking to repeal the ACA and how she would vote, especially as NFIB was decided by one vote where Ginsburg was in the majority.

Pre-existing Conditions Protections Will Not Follow Cancer Patients

While the focus of the California v. Texas case is on the individual mandate, the potential impact of the ACA’s repeal would be disastrous for millions of Americans, thousands of whom have cancer.

“Under current law, health insurance companies can’t refuse to cover you or charge you more just because you have a ‘pre-existing condition’ — that is, a health problem you had before the date that new health coverage starts,” according to the U.S. Department of Health and Human Services. This means insurance companies can’t increase a person’s rates because of their cancer nor can they deny an individual insurance because of their cancer. This is a protection that has not been addressed if the ACA is repealed through the Supreme Court. There is no rule of law other than the ACA that would protect this.

Protection for pre-existing conditions can also impact a patient’s employment. Employers, particularly small or medium-size businesses, faced higher premiums if they had or hired any employees with pre-existing conditions prior to the ACA. Larger employers typically have more negotiating power. With the ACA, smaller businesses, first, don’t have to be concerned about preexisting conditions affecting premiums and, second, they and their employees can purchase insurance using healthcare.gov if options on the market don’t suit them.

This can also impact the career trajectory of patients with cancer, explains Goold, as without the ACA’s pre-existing condition protections they may choose to remain at a job that provides insurance for them instead of moving to a new job and risk losing that insurance rate, even if they wanted to leave. This also applies to spouses of patients with cancer who may find themselves stuck where they are to keep their current insurance, instead of risking more expensive insurance rates elsewhere.

“If I had cancer and the Affordable Care Act went away, I would hope I worked for a large employer who still insured me,” said Goold.

Editor's note: This story was updated to reflect the confirmation of Justice Amy Coney Barrett.

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