The Affordable Care Act, passed in 2010 and at the center of most national election cycles since, will again be a prominent issue in the 2020 election as new Supreme Court arguments over the fate of the health care law could be held in the weeks before Election Day.
In North Carolina, where the fight over the law’s Medicaid expansion provision remains a key dispute between the the state’s Democratic governor and its Republican-led legislature, Democrat Cal Cunningham has positioned himself as a defender of the law and proponent of Medicaid expansion in his race against Republican Sen. Thom Tillis.
Tillis, who previously served as speaker of the House in North Carolina, has been a vocal critic of the Affordable Care Act and used his opposition to the law to help unseat Sen. Kay Hagan in 2014.
“Just one year ago this week, give or take, he was still proudly saying that he was the speaker who made it illegal for the governor to expand Medicaid, and then he has voted repeatedly to repeal the Affordable Care Act and Medicaid expansion is one of the key pieces of that important law,” Cunningham said in a video interview with McClatchy on Thursday.
The Affordable Care Act, often called Obamacare, allowed for states to expand Medicaid eligibility as part of its effort to extend health care coverage to all Americans. North Carolina is one of 14 states that has not expanded Medicaid.
When Tillis was speaker of the House, Republicans passed a bill in 2013 prohibiting Medicaid expansion without action by the lawmakers. It also stopped the state from running its own health benefit exchange. Tillis has taken credit for being the one to stop Medicaid expansion in the state, both at the time and more recently.
In 2013 and 2014, Tillis said financial problems with North Carolina’s Medicaid program needed to be fixed before “we have a discussion about really increasing the funding to Medicaid.” In the general election, he said it was “irresponsible” for Hagan to want to expand Medicaid when it had so much waste.
“I am the speaker of the House who signed the bill that made it illegal to expand Medicaid under Obamacare. Because it was a bad deal, it wasn’t fiscally sustainable,” Tillis told Spectrum News last year.
In a statement this week, Tillis’ campaign said Tillis “saved Medicaid in North Carolina” with his decision not to expand at that time.
“Senator Tillis’ decision to fix it before expanding is what has North Carolina in a better position to expand it today if state leaders choose to do so. Senator Tillis believes that decision should be left up to the state based on its financial sustainability, and his priority in the Senate is creating jobs and putting North Carolinians back to work so they are less reliant on the big government programs that Cal Cunningham would like to see them confined to,” Tillis campaign spokesman Andrew Romeo said in a statement to McClatchy.
But the option to expand Medicaid may not exist for much longer if Republican attorneys general and the Trump administration win their case at the U.S. Supreme Court.
Obamacare at the Supreme Court
The Trump administration, in a brief filed late Thursday, argued the “entire ACA must fall,” including Medicaid expansion and protections for individuals with pre-existing conditions, after congressional Republicans ended the law’s individual mandate to purchase health insurance in their 2017 tax reform bill.
Tillis has voted several times in the Senate to repeal the Affordable Care Act, saying he would vote to get rid of it “every time it comes to the floor.”
“I support anything that ultimately takes a failed health care plan, Obamacare, off the table so that we can start talking about a sustainable one that will make health care affordable and actually make people healthier,” Tillis said when asked about the lawsuit in 2019.
Tillis has said he wants a replacement for the Affordable Care Act and introduced a measure to cover pre-existing conditions in 2018 when the lawsuit now at the Supreme Court was just getting started. Critics said the bill would allow insurance companies to not cover issues related to those preexisting conditions. His spokesman said at the time Congress would have to put forward a more comprehensive plan if the entire ACA were tossed.
Cunningham said his campaign is the only one that is fighting for Medicaid expansion and other parts of the Affordable Care Act.
“We’re in the middle of a public pandemic and public health is a crisis and North Carolina has one of the highest percent of uninsured in the country because we’re one of the states that has not expanded Medicaid,” Cunningham told McClatchy.
Opinion of ACA has changed
In November 2010, Republicans won control of the North Carolina state legislature — as well as the U.S. House and Senate — in large part due to opposition to the Affordable Care Act, passed months earlier by Democrats and signed into law by then-President Barack Obama.
The new Republican majority in the N.C. House picked Tillis to be its leader.
In early 2013, Democratic state Auditor Beth Wood released an audit requested by the General Assembly into Medicaid in the state. It found structural problems — “administrative spending for the state’s Medicaid program is significantly higher (38%) than the average of nine states with similarly sized programs” — and other issues that led to hundreds of millions in shortfalls.
At a 2018 event, Tillis pegged the state’s Medicaid shortfall at $750 million when he took over as House speaker.
Within weeks of the audit, state lawmakers passed the bill prohibiting the governor from implementing Medicaid expansion or setting up a state exchange.
In his 2014 GOP primary, Tillis ran radio ads saying he “stopped Obamacare’s Medicaid expansion cold. It’s not happening in North Carolina, and it’s because of Thom Tillis.” In a GOP debate, he touted his fight against Obamacare.
It was smart politics, particularly among Republicans. More people had an unfavorable opinion of the law for most of the time from March 2011 until early 2017.
Now the politics have been scrambled, timed almost precisely with President Donald Trump taking office. With Republicans in control of the House, the Senate and the White House throughout 2017 and 2018, the chances for repeal shot up. The Senate, however, was not able to pass a bill, despite running several versions — outright repeal, repeal-and-replace and so-called “skinny” repeal in late July 2017. Tillis voted for all three. The first two would have ended Medicaid expansion.
Democrats ran in part on saving the Affordable Care Act in 2018, retook the U.S. House of Representatives and broke Republican super majorities in both chambers in North Carolina.
The ACA’s popularity has been more favorable than unfavorable throughout the Trump presidency. The law is more popular than ever, achieving 52% approval in November 2019, according to the Kaiser Family Foundation, which has polled on the law since it passed in 2010.
Many of the law’s provisions are very popular with Americans, across political lines, including allowing children to remain on their parents’ plans until 26, creating health care exchanges, helping low-income people purchase insurance and stopping insurance companies from denying coverage because of pre-existing conditions.
Republicans eliminated the individual mandate to purchase insurance, the most unpopular part of the law, in their 2017 tax reform bill. Tillis voted for the bill.
Now the Trump administration in its argument to the Supreme Court is saying those congressional Republicans wanted that action to collapse the entire law.
“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these three integral provisions,” administration lawyers wrote in their brief. “The entire ACA thus must fall with the individual mandate.”
Medicaid expansion allows for those earning up to 138% of the federal poverty level to qualify. It aims to close the gap between the very poor, who already qualify for Medicaid, and those with either employer-based health insurance or enough income to purchase health insurance or qualify for federal subsidies to help pay for it.
In North Carolina, estimates of the number of people who could be added to Medicaid under expansion range from 300,000 to 600,000. But the coronavius-induced economic troubles have led to extreme job losses, likely increasing the number of people who would qualify under expansion.
“We have even more North Carolinians without health coverage today than we did even several months ago,” Cunningham said. “And Medicaid is a tool, right in front of us, that is available for North Carolina to help close that gap.”
To encourage states to expand Medicaid, the Affordable Care Act said the federal government would pay 100% of the costs for the first three years of expansion, which would then fall to 90%.
But Democrats in the House and Senate have proposed reinstating the more generous match for states who have not yet expanded Medicaid, like North Carolina. Cunningham proposed including it in the next coronavirus aid package.
“We need a little bit of a kick in the pants here in North Carolina to get Medicaid expanded,” said Cunningham, who served one term in the state Senate in the early 2000s.
If the Affordable Care Act — which has survived several legal challenges including a 5-4 decision in the Supreme Court in 2012 — remains in place, what happens next will largely be determined who wins control of Congress and the White House in November.
North Carolina’s race is considered a toss-up, one that could determine which party controls the Senate in 2021. Cunningham has led narrowly in recent polls, including a Fox News poll that included Libertarian Party nominee Shannon Bray and Constitution Party nominee Kevin Hayes, who are also on the November ballot.
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