After maintaining an oddly low profile early in the election season, health care is a wallflower no more. Last week, the Republican vice-presidential nominee, JD Vance, suggested a second Trump administration might roll back the protections under the Affordable Care Act ensuring that patients with pre-existing conditions are covered. Perhaps he was trying to formulate some “concepts of a plan” that days earlier former President Donald Trump offered during the presidential debate when asked what he had in mind for supplanting the health care law.
Shambolic “repeal and replace” attempts, however, are hardly needed to render a grave prognosis for the Affordable Care Act, the 14-year-old law that provides medical coverage for 45 million Americans. The most virulent threats are proliferating in the judicial system.
This summer, a pair of Supreme Court decisions radically reshaped the health care landscape by overturning the so-called Chevron doctrine. For the past 40 years, this doctrine acknowledged the technical knowledge of scientists and policy experts within federal agencies, giving deference to “reasonable” regulations these agencies issued to interpret ambiguities always present in the complex laws.
In overturning Chevron, the Supreme Court ruled that the courts — not government agencies — should take the lead in clarifying the ambiguities, with Chief Justice John Roberts writing that “agencies have no special competence” in this regard. This significantly weakens the federal agencies’ ability to define the rules that cover health, safety, the environment and other sectors.
No matter who is elected president in November, experts expect a raft of legal challenges from deep-pocketed industry players — drug and device manufacturers, health care conglomerates, insurance companies, pharmacy benefit managers, the nursing home industry. A separate Supreme Court case that loosens the statute of limitations for filing suits means that even long-established regulations are at risk.
Lawsuits could chip away at regulations intended to protect patients medically (such as requiring a minimum number of staff members on the floor at nursing homes) and financially (such as the No Surprises Act, which prevents excessive bills from out-of-network providers incurred during emergency care). Medicare’s ability to negotiate down drug prices would be another likely target.
Legislative brawls like the 70-odd attempts to overturn or undermine the Affordable Care Act will no longer be necessary; the law could be deboned in the courts, with hundreds of individual rules litigated by various interest groups. This would continue the weakening of the A.C.A. that we saw during the Trump administration, which included elimination of universal coverage of birth control, proliferation of lower-quality insurance plans and cuts in subsidies for low-income patients.
The worry about the post-Chevron landscape goes even beyond the rollback of medical safeguards. Inconsistencies in how lawsuits play out in different parts of the country could lead to a hodgepodge of unequal rulings that might make certain vaccines and birth control, for example, routine medical care for some Americans, and hard to come by for others.
This would almost certainly exacerbate health disparities. Having health insurance is one of the most powerful tools for narrowing inequities, because research shows that people with insurance have better medical outcomes and live longer. The progress in increasing coverage rates since the advent of the Affordable Care Act could easily be erased as more provisions of the law are pruned away. (Witness the millions of people who lost Medicaid upon expiration of pandemic rules that had forbidden states from disenrolling people during the public health emergency.)
The judicial unraveling of health and safety regulations will lumber forth no matter who is elected president in November. But bear in mind that the defendants in these lawsuits will be the agencies of the U.S. government and that the defense will be mounted by a presidentially appointed attorney general. A Kamala Harris administration would be expected to defend its agencies vigorously and work with Congress to head off future challenges by fine-tuning regulations through legislation. A Trump administration that views government agencies as “the deep state” would most likely offer tepid defense, at best. At worst, it might openly solicit legal challenges, while appointing conservative judges with scant regard for federal agencies or their experts.
Not long ago, one of my patients with severe diabetes withdrew from medical care for months after job termination led to insurance loss. The resulting medical chaos was a dispiriting reflection of the fragility — and cruelty — of our system. As I sit with my patients and contemplate the further dismantling of our health care system, it’s hard not to feel discouraged.
Despair, however, is not an option in medicine. One ray of optimism arises from the fact that many of the policies on the chopping block are, in fact, quite popular. Mr. Vance should consider that protections for people with pre-existing conditions are supported by a majority of Americans, including Republicans. Pushback may come from the public, in the form of ballot initiatives.
While most Republican states turned down the Affordable Care Act’s offer of Medicaid expansion, voters in Idaho, Nebraska, Oklahoma, Utah, South Dakota and Maine expanded Medicaid via ballot initiative. Missouri voters did so too, even though they had to fight their own government all the way up to the State Supreme Court to get it enacted.
Such grass-roots initiatives are already at work for reproductive health. Voters in the red states Kentucky and Kansas voted down abortion restrictions in ballot initiatives. Voters in Ohio, Michigan, Vermont and California amended their state Constitutions to protect abortion rights, and more ballot initiatives on abortion are expected this November.
The post-Chevron world threatens health and safety regulations, and a G.O.P. victory at the national level is expected to exacerbate this trend. Ballot initiatives and local elections have the potential to mitigate some of this, but the human cost will play out in exam rooms, emergency rooms and living rooms around the country. Medical professionals and patients — along with caregivers and families — carry firsthand knowledge of how political policies and judicial decisions play out in blood, bruise and breath. Our job will be to keep these human experiences front and center during this tumultuous election season.
Danielle Ofri, a primary care doctor at Bellevue Hospital, is the author of “When We Do Harm: A Doctor Confronts Medical Error.” This article originally appeared in The New York Times.
