Webinar panel offers roadmap for covering upcoming King v. Burwell decision
Leading journalists and a former Obamacare official offered predictions, discussed possible outcomes and shared story ideas for the much-anticipated Supreme Court decision on King v. Burwell at a Reporting on Health webinar Tuesday. The high court’s ruling, which some say could be the first step in dismantling Obamacare if the government loses, is expected to be announced by month’s end.
Linda Greenhouse, a veteran Supreme Court reporter who now writes as an op-ed columnist for The New York Times, opened the discussion with a primer on the case itself. “There’s a great deal at stake for both the court and the public,” she said.
For the lawmakers who crafted the Affordable Care Act, the expectation was that states would create their own exchanges where consumers could purchase insurance through a marketplace, Greenhouse said. If they did not, the federal government would step in and offer residents in those states insurance plans through the federal exchange. Many states chose not to create exchanges.
The case originated from two phrases in the Affordable Care Act that reference exchanges established by the state. That wording – or “typo,” as some have called it – spurred the recent court challenge. The plaintiffs argue that federal exchange shouldn’t be allowed to offer subsidies for insurance plans it sells; rather only states who set up their own exchanges should be able to do so, as the legislation is written. The plaintiffs say that the wording in question created a powerful incentive for states to set up their own exchanges – otherwise their residents would not have access to subsidies on the federally run exchange, Greenhouse said.
“The problem with this narrative, of course, is that there’s no evidence for it in the statute, in the legislative history,” Greenhouse said. “And people who were involved with drafting and voting on this law have denied that this was ever in anyone’s minds.”
Greenhouse calls the plaintiffs’ argument against subsidies on the federal exchange a “phony narrative” and questions whether the court will accept its supporting arguments. Still, the fact that they agreed to hear the case is meaningful, she said. While Greenhouse predicts the court will uphold the health law, she said the decision will likely be close.
If the government loses, what options remain?
Panelist Jay Angoff, former Missouri Insurance Commissioner and a former U.S. Department of Health and Human Services (HHS) official and lawyer working on ACA matters, agreed the high court will probably not strike down the subsidies.
“The justices read the papers and they know what’s going on,” Angoff said. “As a practical matter, there are very few people who want the King plaintiffs to win.”
Despite “all the noise they make about how terrible Obamacare is,” Congressional Republicans would be in a tough position if the health law was struck down, he said. Similarly, anti-Obamacare governors could face blame for taking insurance away from people. The hospital and insurance industries —and business interests more generally — also want the law to stay in place, he said.
“Even those groups that you don’t typically see as allied with the administration, they don’t want it struck down either,” Angoff said. “So who’s left?”
A very small group that includes the lawyers for the plaintiffs, consultants who might get business as a result, and perhaps even journalists hungry for a good story, he said. (Angoff criticized the media’s “horse race” style coverage of the case.
But even if the court does side with King, Angoff doesn’t think the result would be as disastrous as many fear. In the past, HHS has demonstrated that it has some statutory flexibility in interpreting the ACA. Angoff pointed to actions such as postponing the employer mandate and allowing the hybrid model of a “partnership exchange.”
Similarly, the department could mitigate the consequences of a plaintiff victory by allowing states to characterize federal exchanges as state exchanges. That approach would work well if the state was amenable. What happens, though, if a state refused to cooperate?
“I’d like to think if it were to come down to that … there would be very few if any states that would actually take that position, but they could,” Angoff said.
Along with the “carrots” of cooperation, HHS could also take the “stick” approach and threaten other health funding sources in those states.
Even if states are on board, though, that doesn’t mean transitions to state-run exchanges would be smooth.
Under such a scenario, Angoff foresees financial obstacles. Previously, the HHS Secretary had “unlimited authority” to help fund, plan and establish exchanges, and spent nearly $5 billion doing so. That authority expired at the end of last year. And many states don’t have great track records when it comes to running exchanges, Angoff said, pointing to places such as Vermont.
Ultimately, Angoff predicts government and industry would figure out a way to keep the health subsidies flowing to residents who formerly relied on the federal exchange, should the plaintiffs prevail.
“Because the industry is benefiting and because business is benefiting and because hospitals are benefiting, I really don’t think the majority of the Supreme Court, particularly Justice [John] Roberts would strike the law,” he said. “I think the law will be upheld not just because it benefits people, but because it benefits business.”
Coverage ideas for King v. Burwell
Health care reporter Jennifer Haberkorn of Politico concluded the discussion by offering article ideas for journalists covering the case, as well as useful reporting resources.
Before the ruling comes down, Haberkorn suggested reporters explain to readers what’s at stake, and interview people who receive health insurance subsidies in states that use federal exchanges. Depending on the court’s ruling, many Republican voters could be at risk of losing the premium subsidies, and that contradiction can make for interesting articles, she said.
Other coverage might look at whether the public is even aware of this case, she said, pointing to some polls that show only about 13 percent of Americans are following this case closely.
Reporters in states that use a federal exchange (here’s a great map of those states and populations using the subsidies there) could also explore contingency planning. Are hospitals taking any proactive steps? Are states following Delaware’s lead and considering a move to their own exchange?
If the court challenge is successful, she suggests covering the personal repercussions for people who stand to lose their health insurance subsidies. And beyond that, what is the impact on hospitals, health providers and insurance companies?
A government victory would likely result in fewer stories, she acknowledged. Still, the case provides a news hook for looking into how well the ACA is working in your state. Do hospitals like the law? How many people signed up in your state compared to other nationwide figures? And, finally, with this latest challenge, is there a sense that the ACA battles are finally over?
Angoff said he’d like to see more reporters cover the insurance industry’s financial stake in the recent challenge, adding that they have a “tremendous” amount to lose.
Greenhouse suggested that reporters keep tabs on the coming verdict by tracking SCOTUSblog, the go-to site for anything related to the Supreme Court.
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