Attacking the Affordable Care Act in the time of COVID-19

Ten years after President Obama signed the Affordable Care Act into law, President Trump and his administration have become a two-faced Janus on the law’s future.

At this very moment, while our country is struggling through a global health crisis of a kind not seen since 1918, President Trump has directed lawyers in his administration to ask the U.S. Supreme Court to destroy the Affordable Care Act. In fact, earlier this month — back on March 5, less than a week after the first COVID-19 death on American soil — President Trump himself said to a Fox News town hall that he wants “to terminate Obamacare because it’s bad.” Yet in recent days, other Trump administration officials are signaling that they are “considering the launch of a special enrollment period for people to sign up” for insurance under the ACA, because of the COVID-19 pandemic. What gives?

Don’t be fooled: President Trump joins a long line of conservatives and Republicans who have attempted to tear the ACA apart over the past decade, and his current efforts in the Supreme Court show where his priorities really are. But if we ever needed a law like the ACA — and for the federal government to do everything in its power to strengthen such a law instead of trying to destroy it — our nation needs it now.

With the worst estimates of the COVID-19 pandemic threatening to reach more than 200 million people in America — including the potential to kill more than 1.5 million — countless families in our country will need confidence that they can seek medical attention without fear of being rejected for inability to pay.

Anyone who avoids seeing their doctor or going to the hospital for lack of quality, affordable insurance not only risks their own health, but also that of their family, neighbors, and entire community. As one report explains, “Estimates from other afflicted nations show that one person infected with the virus spreads it to at least 2.28 other people… One of every five people who are infected will develop COVID-19 to a point that requires hospital care.”

Given the Trump administration’s lack of preparation for this pandemic — failing to warn the nation to flatten the curve soon enough, while providing enough equipment like ventilators and personal protective equipment to our nation’s hospitals at risk of being overwhelmed with patients — the very last thing America needs is the destruction of the law that gives millions of once uninsured or underinsured people their chance to acquire affordable health insurance.

Let’s roll the clock back ten years.

Before passage of the ACA, about one in six — or 50 million people — in America lacked health insurance. Two years after President Obama signed it into law, in 2012, conservatives tried to get the courts to destroy the law and failed by just one vote on the Supreme Court — that of Chief Justice John Roberts, who saved it by correctly reading the Constitution’s taxing power. My organization represented state and local officials back then, who explained why tearing down the ACA would hurt their constituents.

We also represented state legislators three years later, as well as Members of Congress, when conservatives again tried to kill the ACA. That time they failed by two votes, losing both Chief Justice Roberts and now-retired Justice Anthony Kennedy. By 2017, the ACA was responsible for insuring about 20 million people and driving the rate of uninsured to historic lows, a rate that was reversed after President Trump took office and began to undermine the law.

There is a powerful reason why Vice President Joe Biden and Speaker Nancy Pelosi (D-Calif.) have called on President Trump to drop his latest lawsuit. Taking insurance away from millions of Americans is a deplorable policy goal at any time. On the brink of a potential public health catastrophe, it should be absolutely unthinkable. Ten years after passage, the Affordable Care Act must be here to stay, as the appropriate, popular, nationwide solution to a quintessentially national challenge: the provision of quality, affordable health insurance to all Americans.

Elizabeth Wydra, a former clerk at the U.S. Court of Appeals for the Ninth Circuit, is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text and history. Follow her on Twitter @ElizabethWydra.