by Craig M. Klugman, Ph.D.

Politicians are notorious for making campaign promises and then not carrying them out. With the beginning of the 115^th Congress, the GOP has doubled-down on its promise to repeal the Affordable Care Act (aka “Obamacare”). How that repeal will happen and what will replace it remains unknown. Both Congress and the courts are lining up court cases and rules that will set up their destruction of this law that has extended health care insurance to 20 million people in the U.S. Starting January 1, several new provisions were supposed to go into effect including expanding protected class status to include those who identify as transgender and those who had receive abortions, and permitting states to apply for exemptions to design alternative programs.

Three events in the last week show the direction in which we are heading:

1. A new rule for the 115^th Congress says that the House cannot consider a bill that dramatically increases the cost of government spending over a 10 year period. But that rule contains an exception for the ACA. The Congressional Budget Office suggests that repealing the ACA would increase the federal deficit by $353 billion in the next ten years. Under the new rule, any law that repeals the ACA should not be considered, except for the exception built in to undo that law. If this seems crazy, realized that the day after agreeing to close the independent Congressional ethics office, the GOP reversed stance, based on a tweet from their party
2. On December 31, 2016, Judge Reed O’Connor of the US District Court for Northern Texas issued a national injunction against the DHHS from enforcing an ACA nondiscrimination rule. The rule would prohibit discrimination of people based on gender/sex identity and of having terminated a pregnancy. The court case of Franciscan Alliance v. Burwell is a lawsuit of 5 states (Texas, Wisconsin, Kansas, Kentucky and Nebraska) and a number of religious groups saying that a ban on discriminating against transgender patient interferes with the patient-physician relationship and infringes on religious freedom. Jude O’Connor found that adding the administrative rule which added gender identity as a protected class changed the definition of sex discrimination and only Congress can do that. This is a definition drawn from Title IV. Thus, how this case proceeds will affect the status of transgender students in school as well as patients in the hospital. He also found that the rules violated religious freedom, specifically the Religious Freedom Restoration Act, by requiring institutions to pay for procedures they found immoral and to change their current policies.
   I have written about the problem when as a society we let the perspective of one religion determine the law and rules for all: “Let’s make no mistake about it, this is not religious freedom as mentioned in the U.S. Constitution, which forbids Congress from “the establishment of religion.” It is an attempt to force the U.S. government to recognize not an individual’s religious freedom, but that of an organization. This is a request for private groups or organizations to be able to legally force their religious beliefs on others—people who work for them but may not share their religious values. It is a request for a right to impose one person’s beliefs on another.” The judge in this case ruled that having to comply would harm the plaintiffs in the case. But it’s hard to see how nondiscrimination harms anyone other than limiting their ability to discriminate against others. We do not all have to agree on how to live in the world or how to live our own lives, but as long as a person is not materially harmed by another, we should not punish someone for being or believing differently. There is no right to discriminate against anyone. Democracies are based on the idea of maximizing liberty and freedom. From an ethical standpoint, this injunction is wrong.
3. The AARP sued against the wellness incentive provision in the ACA. That provision allows companies to offer an incentive (and now a penalty) worth up to 30% of the premium for those they cover to voluntarily enroll in wellness programs.. This is a discount (or penalty) for things like completing (or for not completing) a health survey, getting an annual check up, and participating in employer wellness programs. The AARP claimed that this provision was coercive because it required individuals to give up private health information about themselves and their families. They also argued that the “voluntary” has become coercive with such a large financial penalty for not participating. On December 29, Judge John Dates of the DC federal district court denied the request for a preliminary injunction.
   Many of us in bioethics have written about these issues. Jennifer Bard, Dean of the University of Cincinnati School of Law has written about how the ACA wellness provisions conflicts with GINA’s privacy rules. I have written about the coercive nature of such wellness programs. While the notion of wellness programs is noble—to prevent disease is better than to treat it once it happens (and cheaper)—the reality is that the implementation of these programs is not evidence-based and the financial penalties often eliminate a person’s freedom to refuse to participate.

Of course if Congress repeals the ACA then most of these cases become meaningless. Still, the courts may allow them to go forward, especially the discrimination suit since that affects not just the provisioning of healthcare but all also affects rules on bathroom use in schools and extending the rights of freedom and respect to everyone no matter their past choices (to which some might disagree) or their gender/sex identity. The ACA is not perfect, but it is better than what we had. The idea that legislators would willingly uninsure millions of people and cost us billions of dollars to prove a point is vindictive and harmful. We need to remind them that they are elected representatives and not our selected overlords.