When a federal judge in Texas struck down the Affordable Care Act in December—the result of a legal challenge levied by the Trump administration and Republican officials in eighteen states, including Texas attorney general Ken Paxton—it was the start of a long road that’s likely to end at the U.S. Supreme Court. The ruling also raised the possibility that the framework governing the nation’s health care system will disappear, and one day soon Americans will find themselves back in a pre-Obamacare world.
So what, exactly, does that mean for Texans, considering that the Legislature has done next to nothing to prepare for the chaos that could erupt if a court ruling destabilizes the insurance marketplace, causing millions of Americans to lose access to health care?
One of the most significant changes the Affordable Care Act brought about was protecting people with pre-existing conditions. Before the law, if you had a chronic condition—anything from asthma to multiple sclerosis—insurance companies were allowed to deny you coverage, charge you significantly higher premiums, or refuse to pay for any treatments related to that condition. Even as they have continued to push for a repeal of the law, Republicans have been keen to assure Texans that protections for pre-existing conditions will remain.
After the December ruling, speaking before the start of the 2019 legislative session, Governor Greg Abbott pledged that “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.” In early July, Paxton issued a statement that “when Obamacare is struck down once and for all, legislators across the country can get back to crafting policies that address the needs, and conform with the values, of their own residents. This includes protecting pre-existing conditions, which Texas and a majority of the other states protected before Obamacare was signed into law.”
Yet state lawmakers didn’t create any kind of a real backup plan when they had the chance earlier this year, and state law doesn’t (and didn’t) provide any meaningful protections for people with pre-existing conditions, contrary to Paxton’s statement. If the Affordable Care Act goes down, sick people will be out of luck until lawmakers get their act together—and no one ever went broke underestimating the Texas Lege.
Prior to Obamacare, the state had one real instrument to offer health care access to people with pre-existing conditions, says Stacey Pogue, a health care policy analyst at the left-leaning Center for Public Policy Priorities. That was a high-risk pool, a state-run insurer of last resort. If you had been turned down by other health insurance companies and couldn’t get insurance through your job, you could get basic insurance through the state. But it was remarkably expensive, twice as much as private insurance, and relatively few people used it. “That’s when we had six million uninsured,” Pogue says, “and our high-risk pool covered 26,000 Texans.”
But even this severely insufficient high-risk pool doesn’t exist anymore. It was shuttered in 2014, after the Affordable Care Act went into effect. The program would have to be recreated by an act of the Legislature. A bill passed last session gives the state’s insurance commissioner authority to stand up a “temporary” high-risk pool in the mold of the old one, but it’s unclear how quickly that could happen.
Current state law, Pogue says, clearly gives insurance companies the right to refuse to sign up sick people and also permits employer-provided insurance plans to avoid paying out for pre-existing conditions during the first year of employment. Texas lawmakers didn’t pass any bills to change that last session or in 2017, when it seemed possible Congress would repeal Obamacare (and later nearly did).
Something strange happened to state politics after Obamacare was enacted. “Before the ACA passed, every interim, there were hearings on, How do we reduce our uninsurance rate?” Pogue says. The question of how to get more people health care access was long a matter of bipartisan interest—until 2010. Once the law passed, “that discussion stopped immediately.” The subject of health care become toxic. Republican legislatures, including Texas, refused to accept nearly free money from the federal government to expand Medicaid and otherwise abandoned the issue to the national political brawl.
Republicans no longer wanted to touch trickier questions of health care policy, which would probably mean government intervention. Attempts to repeal the Affordable Care Act after Trump was elected failed because the Republican Party couldn’t generate a satisfactory replacement for it, without which moderate GOP senators were unwilling to tear the system down. Meanwhile a number of (mostly Democratic) states have written the well-liked parts of Obamacare into state law. Texas has chosen not to follow suit, which means the Legislature will have to scramble to replace it if the thing goes down. And there’s not a very robust plan waiting in the wings—the conservative Texas Public Policy Foundation recommends health savings accounts.
It’s a strange thing: One branch of Texas state government is leading a crusade that, if successful, will cause another branch serious problems. (Not just about access to health care—Pogue notes that the ACA provides $5 billion in subsidies to poor Texans to purchase insurance, money the state is unlikely to be able to pony up on its own.) That branch is watching events unfold without preparing for it. Meanwhile, without any apparent basis in reality, everyone involved is telling the public: Everything is under control.