This commentary was originally featured in The Hill on April 26, 2018.
For Neill Hurley, the hardest parts of complying with the Patient Protection and Affordable Care Act — the ACA, or ObamaCare — have been the decisions taken away from him, such as choosing his own doctor, and the decisions that have been forced upon him.
“We want to make sure our kids’ health is taken care of,” Hurley, a Houston-area entrepreneur and tech consultant, told me. “But with the high deductibles we have with the ACA, we’re making the kinds of decisions we didn’t have to make before. When one of my sons has a sniffle, we have to decide whether to pay out of pocket to see a doctor, or try to wait it out. I’m fine making that kind of decision for myself, but when it’s your kid, it’s different.”
ObamaCare may not be in the news right now, but it’s still affecting lives and liberty throughout the nation. That’s why the Texas Public Policy Foundation is representing Neill and his family, among others, as part of the Texas-led, 20 state challenge to the law in the courts.
Although Congress eliminated the ACA’s “individual mandate” — the penalty for not purchasing a government-approved policy, whether it meets your needs or not — by setting the penalty at zero, it did not repeal the law. The ACA remains a regulatory behemoth, changing the relationship between individuals and their government, and thereby changing the entire U.S. economy.
Still, the linchpin of the ACA remains that individual mandate. According to Congress itself, the ACA’s provisions do not function rationally without the individual mandate. Congress found this requirement to be “essential to creating effective health insurance markets,” and that absence of the individual mandate “requirement would undercut Federal regulation of the health insurance market.”
The U.S. Supreme Court’s ruling that held the ACA as constitutional also relied upon the individual mandate. The court decided that the individual mandate penalty is a tax, because it generates revenue.
But since the passage of the Tax Cuts and Jobs Act, which set the penalty at zero, it doesn’t generate revenue — so it’s no longer a tax.
That’s why we have a solid chance of winning this fight.
First, the language and reasoning the Supreme Court used to uphold the ACA simply don’t exist anymore. So under the court’s own reasoning, ObamaCare is no longer constitutional. There’s no more justification for government stepping in and ordering citizens to purchase a product that doesn’t meet their needs. The entire framework of the ACA is built on one principle — compelling individuals to buy these insurance plans, which aren’t working.
And that’s the second reason. After eight years, it’s clear that the ACA is a failure. In the 2016 presidential election, you will recall, even the Democrats ran on a platform of fixing ObamaCare.
Everyone knows it’s broken. The outcomes are getting worse. Costs are increasing while access to health care is decreasing. Premiums and deductibles rise, while more and more doctors and hospitals decline to accept these plans.
But Congress isn’t getting the job done. That’s why you’ll continue to see states, and groups like ours, and individuals like Neill step up and lead.
It’s also appropriate that this effort is being led at the state and individual level. The goal isn’t to change how the federal government controls health care, it’s to take the federal government out of the equation. Let’s leave it to the states to handle health care, with reasonable regulations that allow for free market competition and choice for doctors and patients, and therefore better outcomes.
For families like Neill’s, it means the ability to take control of their own health care again.
“With the ACA, we lost the ability to see the doctors we want to see,” Neill told me. “My wife and I ended up having to find new primary care physicians, and every specialist. My wife’s new doctor is much farther away, and we found that he only sees two or three patients a week, so it’s been difficult for her to get it. We were all told that health care would be cheaper and more accessible for everyone. I can say that’s not the case for us.”
That’s why we’re challenging the ACA again — because families are still suffering from its effects.