With the passing of Justice Ruth Bader Ginsburg, feminist icon and inspiration to many, the future of many healthcare issues are uncertain. The Supreme Court of the United States serves to protect the rights and liberties of the American people and utilizes the Constitution to ensure “Equal Justice Under Law.” Although the precedent was set in 2016 to delay nomination of a Supreme Court Justice until after the election and inauguration during an election year, the Trump Administration and Republican Senators are working diligently to get their nominee, Amy Coney Barrett, confirmed faster than ever done in the past. The future makeup of the Supreme Court will have lasting effects on our communities, patients, and healthcare.
The Supreme Court has made countless rulings in the past that impact the profession of pharmacy and the patients of pharmacists’ access to healthcare. Much of the profession has been focused on the Court in recent months as anticipation over Rutledge v. PCMA grows. However, arguably more pressing is the future of the Affordable Care Act (ACA), and if the healthcare of patients that pharmacists care for is put in jeopardy. This week, we breakdown the possible consequences to patient access to healthcare as a result of changes to the court.
Brief Rundown of the Current Supreme Court of the United States
The Chief Justice is John Roberts, who, although conservative, has voted against the Trump administration on multiple issues.
The Future of Our Patients’ Rights and Healthcare
The addition of another conservative justice to the Supreme Court makes the future of various healthcare issues uncertain, including immigrants’ rights and potential repeal of DACA; women’s rights and reproductive rights, including possible overturn of Roe vs. Wade; and LGBTQ+ rights, including elimination of protections for these individuals. And, of course, the future of the ACA is at the forefront of the discussions.
It is not yet confirmed if Amy Coney Barrett, who President Trump has chosen to fill the void left by RBG on the court, would consider the entire ACA invalid if the individual mandate is determined to be unconstitutional. Indeed, we can’t say for sure how a Justice Barrett would rule on many of the issues that may affect our communities and patients. However, Barrett has been on record numerous times criticizing the ACA. She has also signed a newspaper advertisement that referred to Roe vs. Wade as “barbaric” and has shown hostility towards LGBTQ+ rights. After the announcement of her nomination, Barrett stated of the late Justice Antonin Scalia: “His judicial philosophy is mine, too.” Can we assume she will align with her mentor’s previous stances on these issues? In addition to these known issues affecting public health, the Supreme Court may begin to hear cases in the next term related to the pandemic, which could lead to decisions that change the way we handle response to public health emergencies for years to come.
As the possibility of the Supreme Court leaning even further right and the threat of overturning the ACA become more real, it’s important for pharmacists to understand what changes could come.
The Future of the Affordable Care Act
The future of the ACA remains uncertain, as arguments for Texas vs. US are scheduled to begin a week after the election. This case challenges the individual mandate, or the minimal essential coverage provision. The result of this decision calls into question whether or not the entire law will survive if the individual mandate is deemed unconstitutional. There are a few possible outcomes, all of which would result in different severity of effect on our patients and communities.
1) There is no standing for the lawsuit, and the ACA would remain to exist as it does today (low likelihood pending the makeup of the Supreme Court).
2) Individual mandate is unconstitutional, which invalidates only that provision. This would leave the rest of the ACA intact with the only change being that there is no enforceable mandate requiring all individuals to maintain a minimum level of health insurance coverage.
3) Invalidate individual mandate and protections for people with pre-existing conditions. This would result in federal funding for premium subsidies and the Medicaid expansion to remain intake, but states would have to determine whether or not to reinstate protections.
4) All or most of the ACA is overturned. This would result in overturning the significant changes the ACA made to the individual insurance market, including requiring protections for people with pre-existing conditions and authorizing premium subsidies based on income, as well as expansion of Medicaid eligibility, coverage of preventative services, and establishment of national initiatives to promote public health, care quality, and delivery system reforms.
You may be asking yourself, what can I do to ensure protection of my patients now and in the future? First, it is important to stay informed on these topics (click here to sign up to receive regular communications from The Grassroots Pharmacist). Second, utilize resources available to contact your elected officials. Examples of advocacy resources are available on our website, and additional resources are available from the American Public Health Association. Additionally, getting involved at the local level to protect individual rights is a good step to helping protect your patient’s rights for years to come. This may be in the form of volunteering or donating to local civil rights organizations. Finally, although the timeline of the confirmation hearings is now questionable with multiple Senators testing positive for COVID-19 and remaining in quarantine, you can still urge your Senator to delay the appointment of a new Supreme Court Justice until after the election and inauguration. Communicate to them that it is in the best interest of our patients and profession to ensure continuity of the ACA and thus protections to our patients access to healthcare, along with following the precedent set in 2016.