In the National Federation of Independent Business v. Sebelius ruling, 567 US 519 (2012), the United States Supreme Court determined the constitutionality of the Affordable Care Act (ACA, also known as Obamacare). In its decision, the highest court expressly considered constitutional the legal mandate to get medical insurance contemplated in the law, associating it with the constitutional power Congress has to create taxes.
Obamacare’s approval was the product of a political struggle that did not escape polarization, despite having been a legislative product based on an idea that originated in the bipartisan consensus. It progressed from the then-Massachusetts Governor Mitt Romney’s Republican-inspired proposal, whose elements were thought of by Romney and the conservative think-tank Heritage Foundation. In other words, the ACA is legislation born out of bipartisan consensus and inspired by the Massachusetts state health model. After some adjustments and scopes, President Obama conceived it and obtained Congress’s approval, fulfilling one of his primary campaign promises; to expand affordable health coverage to millions of Americans, including those who were excluded from coverage by insurance companies pre-existing medical conditions.
Since its first day in force, Mitch McConnell and later Donald Trump have campaigned fiercely to repeal it, including that court battle that reached the Supreme Court and various legal skirmishes presented by Republican-affiliated federal prosecutors and state governors. The Trump administration has implemented a series of measures to undermine, and eventually, collapse, the system created by this law, which has increased medical coverage to more than 20 million people (of them, approximately 6 million Latinos). And thanks to its validity (together with other legal provisions), more than 150 million citizens with pre-existing conditions have medical coverage.
In summary, the ACA has granted 92% of the population access to the healthcare system—the most extensive possible coverage without adopting a universal health system. Support for this legislation went from polarizing and controversial to very popular. Polls indicate that nearly 60% of Americans support the law. Despite all this, Trump and the Republicans continue to be to attack and work to repeal the ACA, even amid the coronavirus crisis, when the provisions of the law have been fundamental in favoring medical care for thousands of families affected by the pandemic, particularly the African American and Latino population. In a new and absurd offensive, the Trump administration insists that the Supreme Court should review Obamacare’s constitutionality again. Perhaps they are betting that, with the recent appointments of two justices, the Supreme Court will change its opinion, not for the benefit of the American majorities but rather that of the large pharmaceutical and insurance corporations, which persistently oppose the ACA system without offering, like Trump, an alternative. A detriment to this legal conquest would mean taking away the right to health from millions of citizens.
Instead of continuing this (twisted) interest to oppose the ACA, policymakers should improve, expand, and strengthen it. There are two fundamental pieces of this desirable reform. First—something that remained pending despite the Obama-Biden administration’s efforts at the time—, adding a public option so that people can choose between private insurance (or the one that they currently have) and a public option (offered by non-profit institutions), which competes with private insurance. With this expansion, medical coverage would further increase, introducing a new competition element that would lower the cost of insurance policy premiums. Second, there is still much to do to reduce the cost of prescription drugs. For example, insurances could cover the use of generic medicines, given that their price is among the factors that most impact citizens who have coverage in the current system.
The right to health is a human right. This can never be emphasized enough. All countries with economic development levels comparable to that of the United States have achieved universal healthcare coverage in different ways. Healthcare cannot be a matter subject to political fluctuations, used with the flags of left and right dogmatism. It is immoral—let’s say it once and for all—for a government to align with the great economic interests at the cost of sacrificing its citizens’ health. And that is what Trump intends to do, and what he will do if the society aware of its rights does not stop him.