A multi-front war
The high court’s decision in King v. Burwell was anxiously awaited by both backers and supporters of the Affordable Care Act, who agreed that a decision invalidating the subsidies would have created chaos for Obamacare.
Plaintiffs in the case, four residents of Virginia, argued that they should not be forced to buy health insurance and shouldn’t receive tax credits under the law. Their argument rested on wording in the law that was vague on whether the tax credits applied to residents of states using a federal insurance marketplace, or “exchange,” rather than an exchange established specifically by a state; 34 states are using the federal exchange. But the justices ruled in a 6-3 decision that siding with the plaintiffs might well destroy insurance markets.
“The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the (Affordable Care) Act to operate in this manner,” Chief Justice John Roberts wrote for the majority.
But in statehouses around the country, fighting over the act will likely continue. The Center for Public Integrity reported on the heated war over Obamacare in state legislatures earlier this year, finding more than 700 health reform-related bills introduced during 2014 or carried over from 2013 in states where legislatures allow that. Five states—California, Hawaii, Illinois, New York and Washington— saw 50 or more health bills each, according to data from the National Conference of State Legislatures, or NSCL.
Whether some diehard opponents will stand down amid greater public acceptance of the law is not clear. One who says he won’t is Ritze, an osteopathic physician who chairs the Oklahoma House Public Health Committee.
“We’ll continue to introduce bills and legislation to take bites out of the ACA,” said Ritze.
The NCSL has tracked more than 170 new state bills filed in 2015 relating to health issues, including some direct assaults on the Affordable Care Act. A list is here.
The National Academy for State Health Policy, an independent group, has taken notice of bills to create exchanges or to junk them.
As of June, 11 states are considering bills to now establish their own exchanges or designate the federal exchange as the state's own. On the flip side, lawmakers in ten states introduced bills this year to block creation of an exchange or to scrap one that’s in place, according to the academy. Here’s a state-by-state list tracking the bills. How states might link up to the federal site isn’t entirely clear at this point.
Some bills are the handiwork of political groups that push agendas on a range of hot-button topics across the country.
The conservative American Legislative Exchange Council, or ALEC, works to “advance limited government, free markets and federalism at the state level.” It has long championed “model” bills that gum up enforcement of the health reform law.
It’s liberal foil is the State Innovation Exchange, that sees itself as the “legislative wing of the progressive movement.”
The Tenth Amendment Center, which considers Obamacare unconstitutional, wants to see legislators pull levers of state government in ways that will obstruct the law. One such step: threaten to revoke the licenses of insurance agents who agree to sell Obamacare policies. Another tactic: enact laws that tie the hands of state insurance department officials, who are largely responsible for regulating health coverage.
“The federal government needs states to be complicit to pull this off,” the group says on its website.
The ACA’s backers tend to dismiss these sorts of bills as fringe politics or gimmicks that will ultimately be struck into oblivion by the courts. But the impact of multiple legal tussles over Obamacare is not known. Some states have recently taken the first steps down that trail.
In April, Arizona Gov. Doug Ducey, a Republican, signed HB2643, which prevents the state “from using any personnel or financial resources to enforce, administer or cooperate with the Affordable Care Act.”
Ritze, the Oklahoma lawmaker, cited a recent bill in his state that tightens oversight of Obamacare “navigators,” who help walk uninsured people through the complexity of picking a plan and signing up. ACA supporters have attacked these bills as thinly veiled ploys by insurance agents to scare off competition.
The Oklahoma bill, (SB 236), for instance would require criminal background checks for navigators and require them to register with the state. It was signed into law in April.
According to Ritze, navigators “were not giving consistent answers” when people had questions about insurance policies. He said: “we felt they should be certified or have some oversight.”
In Montana, SB 350 became law in April and will also require licensing of navigators.
The great unknown
Tracking how much is being spent in the states to lobby lawmakers to pass these sorts of bills can’t be done with any certainty, said Denise Roth Barber, managing director of the National Institute on Money in State Politics in Helena, Montana.
Barber said half the states don’t require companies and lobbyists to report money that is paid to lobbyists.
“If you don’t have that piece of the puzzle you are missing a significant chunk,” she said. “It’s an amazingly important question that can’t be answered.”
This story was co-published with NPR.