npr--2020-10-08--Will The Affordable Care Act Survive The Next Supreme Court Challenge?

Will The Affordable Care Act Survive The Next Supreme Court Challenge ?
`` Republicans have been trying to drive a stake into the heart of Obamacare pretty much since it was passed — both through legislation and litigation , '' New York Times reporter Sarah Kliff says .
This is FRESH AIR .
I 'm Dave Davies , in today for Terry Gross .
One week after the presidential election , the U.S. Supreme Court will hear oral arguments in the latest challenge to the Affordable Care Act .
Republicans have sought to put an end to Obamacare through litigation @ @ @ @ @ @ @ years it 's been in effect .
The current legal challenge could be decided by a court with a six-vote conservative majority if President Trump 's nominee , Judge Amy Coney Barrett , is confirmed and sworn in by then .
All this happens as candidates this fall debate the issue of preserving health insurance for people with preexisting conditions , and President Trump 's handling of the COVID-19 pandemic and his own infection are issues in the campaign .
For insight today , we turn to Sarah Kliff , an investigative reporter @ @ @ @ @ @ @ on national health policy .
Kliff has been covering the beat for more than 10 years for several media outlets , including Politico , Newsweek , The Washington Post , Vox and now The New York Times .
She spoke to me from her home in Washington , D.C. SARAH KLIFF : Thank you for having me .
DAVIES : We planned this interview to talk about the Affordable Care Act , but I have to begin by getting your take on the president 's experience with COVID-19 .
There 's been so @ @ @ @ @ @ @ 's conduct and that of other members of his administration when it comes to , you know , precautions for the coronavirus .
What 's your take on that ?
KLIFF : You know , I think it is certainly the case that when you see some of those photographs from the past weekend of the ceremony for Amy Coney Barrett , other events at the White House , that you do see a lack of distancing , you know , compared to what a lot of Americans have been observing over the @ @ @ @ @ @ @ has recommended .
And I think it is certainly jarring , you know , for someone like me - who has n't hugged anyone , you know , besides my husband in the past six , seven months - to see , you know , folks freely hugging each other .
It 's a bit jarring , and it 's a bit different from the experience a lot of Americans have been having living through this pandemic .
DAVIES : You and I are speaking on Wednesday morning .
There 's been a @ @ @ @ @ @ @ to the White House and of some of his messaging .
You know , it 's - which has been sort of , you know , the - you know , the virus is - you know , I took it on .
Do n't let it run - rule your life .
I mean , how do you think this whole experience might affect Americans ' perception of the threat of COVID-19 ?
KLIFF : Oh , I think it 'll definitely affect Americans ' perception of the threat of COVID-19 , @ @ @ @ @ @ @ , he was tweeting on Monday , slightly before his return to the White House , you know , do n't be afraid of COVID ; do n't let it dominate your life .
We saw him take off a mask in a pretty public way .
And I think one of the things we 've learned over the past four years - which , you know , maybe is surprising ; maybe is n't - but particularly Trump supporters , they really do take what the president tells them at face value @ @ @ @ @ @ @ separate , but I think it 's related .
Last week , I reported a story about how President Trump 's voters think about his record on preexisting conditions , and most of them think the president will protect preexisting conditions because he constantly says he will in rallies and tweets , on Facebook , when in actuality , his policy record is the complete opposite of that .
It 's been a lot of work to try and get rid of those consumer protections .
But I think one of the things @ @ @ @ @ @ @ is a bit applicable here is that the president 's supporters , you know , they take what he 's saying at face value .
We 're used to trusting our leaders and assuming that they are not lying to us ; they 're telling the truth .
And I think you will see a number of folks kind of taking Trump 's message to heart and , you know , deciding I do n't need to be afraid of this because our president is n't afraid of it .
DAVIES : Right @ @ @ @ @ @ @ core supporters .
Of course , he 's in an election where he needs others .
How might this affect the views of others - independents , Democrats ?
KLIFF : Yeah , I think that 's a more challenging , you know , question to answer .
We have seen some polling suggesting that there is not much trust in the White House when it comes to President Trump 's health condition and the information being put out .
So I do think I agree with you , Dave , there - @ @ @ @ @ @ @ rally his base and they 're going to take to heart what he is saying .
But I think you do see , out in the real world , a lot of folks support masks .
There 's widespread support for mask mandates , you know , even across political parties , that this might alienate some folks who are on the fence , who feel like they 're living their lives very differently because of the threats of coronavirus and are not seeing the president do the same thing .
DAVIES : @ @ @ @ @ @ @ Care Act , Obamacare , and what remains .
You know , in 2017 , the penalties associated with the individual mandate were removed , which was , you know , considered a big part of the law .
So let 's look at what 's still standing and what is still in effect .
It 's still illegal to deny coverage to someone with preexisting conditions .
Kids can remain on their health care plans until age 26 .
That all still in effect ?
KLIFF : That is all still in @ @ @ @ @ @ @ the minimum requirements for health care plans offered on the exchanges ?
Has that changed ?
KLIFF : That has n't changed .
But I will say one of the things that has changed is the Trump administration has loosened the rules around the sales of what are called short-term health insurance plans .
These are plans that typically last less than a year of coverage .
And what the Trump administration has done differently than the Obama administration - it has allowed these plans to exist and not cover the minimum benefits @ @ @ @ @ @ @ plans that do n't cover prescription drugs , do n't cover maternity care .
Those type of plans were quite common before the Affordable Care Act on the individual market .
And so we are seeing , you know , while on the marketplace , on healthcare.gov or the state-run marketplaces , all the minimum benefits are required , we are seeing off-marketplace these skimpier plans that might have cheaper premiums but also offer less robust services .
Those are growing in numbers in terms of what Americans are able to purchase .
@ @ @ @ @ @ @ health care is so confusing and complicated that I could imagine people picking the lower price , not realizing what they 're not getting .
KLIFF : Exactly .
And you do see some pretty aggressive marketing by some of these short-term plans .
I mean , I 've even received calls on my phone , you know , from folks who are trying to sell me individual insurance .
And I often start asking a lot of questions and get hung up on when I start kind of probing into the benefits @ @ @ @ @ @ @ but you could certainly see that happening .
And usually you only realize that the benefits are n't what you thought they were when you have some kind of medical need , an emergency , and all of a sudden , you have these bills you did n't expect , and then you really start researching - what is this I purchased ?
And you realize what you purchased is n't really what you thought it was .
DAVIES : One of the parts of the act which really increased health insurance for @ @ @ @ @ @ @ of Medicaid , then funded largely by federal subsidies .
Is that expansion still largely in place ?
KLIFF : It is .
It is , and it 's growing .
One of the things we 've seen over the past few years is about a half-dozen states have expanded Medicaid via ballot initiatives .
Republican governors , many remain resistant to Medicaid expansion .
They do n't want to sign up for it .
And we 've seen a number of grassroots organizers kind of take this question directly to the voters @ @ @ @ @ @ @ 's quite successful .
So just this year alone , both Oklahoma and Missouri have decided to join the Medicaid expansion .
And that happened via ballot initiatives ; that did n't happen through the legislature .
So one of the things we 've really learned over a decade of the Affordable Care Act is it 's that expansion of Medicaid and expansion of public coverage , that 's what 's driving most of Obamacare 's enrollment .
It 's not the subsidized private plans ; it 's the free public plans that @ @ @ @ @ @ @ coverage .
DAVIES : And do states have to cover most of the cost of this now ?
KLIFF : They do n't .
The federal government pays 90 % of the costs , and states foot about 10 % of the costs .
That is a more generous match than what exists in the traditional Medicaid program .
Usually it 's closer to 50-50 or 60-40 .
So it 's really a big , enhanced match , and that was a key part of getting the Affordable Care Act passed .
The @ @ @ @ @ @ @ this is not going to be onerous on you ; you 're only going to have to kick in a little bit to get a lot of people covered .
DAVIES : And do we know overall what the fiscal impact of the act is ?
I mean , a lot more Americans are insured than before .
Is costing us a lot ?
KLIFF : You know , generally , the Affordable Care Act has come in below cost estimates .
We 've seen the Congressional Budget Office revise downward how much @ @ @ @ @ @ @ that actually comes back to the type of coverage people are getting .
Enrollment in Medicaid is higher than expected .
Enrollment in the private plans is lower than expected .
And Medicaid typically pays lower prices to doctors than private insurance plans do .
So generally - you know , it obviously costs money to get people covered , but it is costing the federal government less money than was expected when the law was passed a decade ago .
DAVIES : We 're going to take a break here .
Let @ @ @ @ @ @ @ with Sarah Kliff of The New York Times .
She 's an investigative reporter who covers the American health care system .
We will continue our conversation in just a moment .
This is FRESH AIR .
DAVIES : This is FRESH AIR , and we 're speaking with Sarah Kliff .
She 's been covering the American health care system and national health policy for more than 10 years .
She 's an investigative reporter for The New York Times .
The big blow to Obamacare was in 2017 when the tax @ @ @ @ @ @ @ the penalties that were associated with people not getting health insurance , right ?
The requirement is technically still there , but a zero penalty , so it 's lost its teeth .
And I think a lot of people thought , uh-oh , because , you know , the whole idea was , if we 're going to provide more protection for people with preexisting conditions and all of these other benefits , we 've got to get younger , healthier people into the system so that the finances work .
What @ @ @ @ @ @ @ those younger , healthier folks staying in or getting in or getting out now that there 's no penalty for them declining coverage ?
KLIFF : Yeah , this was something that surprised health economists is they constantly talked about Obamacare as - they 'd use this analogy of a three-legged stool .
And one leg is , you know , getting rid of preexisting conditions - you let everyone in .
The other leg is subsidies - you make it affordable .
And the third leg is the mandate - you make @ @ @ @ @ @ @ do n't think they need it .
And health economists spent , you know , the better part of a decade saying you cut off any leg , and the stool just tumbles over .
And Republicans did cut off one of the legs , and it has n't really tumbled .
You know , we just got the health insurance numbers from the census for 2019 , which is the first year without the mandate , and there was n't really any noticeable change .
A lot of economists have gone back @ @ @ @ @ @ @ mandate was quite as important as they initially did when they were drafting the Affordable Care Act .
I kind of loved - what one economist told me was that , you know , maybe it 's not a three-legged stool .
Maybe it 's kind of like the wobbly table at a restaurant that is n't perfect , but , like , it works , and it does the job you need to do to eat your dinner .
The mandate , it turns out , was a kind of weak penalty @ @ @ @ @ @ @ very big compared to the size of purchasing health insurance .
And one of the things I think economists have realized that the subsidies , the things that make insurance affordable on the Obamacare marketplace , that 's really what got people enrolled , not the mandate to enroll , but the money to make it affordable .
DAVIES : So the idea that young , healthy people would just , you know , roll the dice and go without insurance turns out not to be true .
I mean , they realize @ @ @ @ @ @ @ you can make it affordable .
KLIFF : Exactly .
And a lot hinges on the last thing you said - the if you can make it affordable - that we 're seeing , you know , with the way these subsidies are structured , they go up with the cost of health insurance .
So if you are someone in the subsidized population , you 're always going to have your premium capped at a certain share of your income .
And it turns out that structure has worked really well .
@ @ @ @ @ @ @ of Americans who could n't afford it before now , whereas , you know , a kind of small mandate , it just was n't getting the job done .
The carrot was good enough that you did n't really need the stick .
DAVIES : So where are we now in the increase of the number of Americans insured since the act was passed or , conversely , the decline in those uninsured ?
KLIFF : Yeah , so we 've seen about 20 million Americans gain health insurance since the Affordable @ @ @ @ @ @ @ were generally going up during the Obama administration , and then they 've ticked downwards a little bit in the Trump administration .
We did , like I mentioned earlier , get recent census data last month , which showed health insurance rates were basically holding stable in 2019 after declining a notable amount in 2018 .
So generally , you know , it fluctuates a little bit year to year .
But we 're talking about 20 million Americans who have health insurance compared to pre-Affordable Care Act times .
DAVIES : @ @ @ @ @ @ @ stake into the heart of Obamacare pretty much since it was passed , both through legislation and litigation .
And so far , it 's standing .
But , you know , the health care system 's complicated .
And if these threats are hovering , I wonder how they have affected the market and the actions of insurance companies and hospitals and others in the system .
KLIFF : You know , it 's actually been relatively stable in kind of a surprising way .
As you mentioned , you know , @ @ @ @ @ @ @ day it was passed - multiple repeal attempts , multiple Supreme Court cases , a lot of governors doing what they can to block the law in their states .
But the law has actually been relatively stable .
We saw some pretty swift premium increases when the marketplaces launched in 2014 .
Those have kind of petered out a little bit .
You know , usually each year , there 's about nine to 10 million people who buy coverage on the marketplaces .
That number might increase significantly this year with @ @ @ @ @ @ @ with the jobs they used to have before the pandemic .
But it 's been surprisingly stable .
It surprised me .
It surprised a lot of sources that I talked to , given all these efforts to take the Affordable Care Act down .
DAVIES : So let 's talk about this court case , which is going to be argued a week after the election .
The caption on the case is California v. Texas .
Who are the plaintiffs in this case ?
What 's their argument for knocking down @ @ @ @ @ @ @ it 's a little confusing because the plaintiffs in this case are actually the ones defending the Affordable Care Act .
So why do n't I tell you about the challengers to the Affordable Care Act and kind of what they are arguing ?
So the challengers is a group of Republican attorneys general .
And they are making a two-part argument that 's a little complex , but I 'll do my best to try and summarize that .
It all starts with this 2017 tax bill we talked about earlier that @ @ @ @ @ @ @ dollars .
They make the argument that without a tax , without a number attached to it , the mandate is unconstitutional .
If you remember back to the 2012 decision that upheld the individual mandate , the Supreme Court ruled there that it was constitutional because of the federal government 's taxing powers .
They say no tax , now it 's unconstitutional .
So that 's the first part in their argument .
The second part is really what the case hinges on .
They argue that the mandate is so @ @ @ @ @ @ @ It 's such a crucial part of the law that if the court finds the mandate to be unconstitutional , it needs to strike the rest of the law down .
In legal terms , they are saying that the individual mandate is inseverable from the rest of the Affordable Care Act and that if a court finds the mandate unconstitutional , that everything - the protections on preexisting conditions , the Medicaid expansion , you know , really far-off provisions like requirements to post calorie labels in restaurants - all of that @ @ @ @ @ @ @ unconstitutional .
DAVIES : Right .
You know , that argument that if one part falls , the rest of it must fall just always struck me as more of a debating point than a legal argument .
I guess the connection to the Constitution is to the taxing authority of Congress here , huh ?
KLIFF : It is .
So it all kind of comes back to the taxing authority of Congress .
And I think there are , you know , some liberal legal scholars who say , you know @ @ @ @ @ @ @ argument is right .
You know , maybe there really is n't a case for upholding the mandate anymore , but it 's kind of a so what of it at this point .
The penalty is zero dollars .
Having the mandate struck down as unconstitutional really would n't change Obamacare much one way or another .
The real question of this case sits on this question of severability , of if the court decides that they are not going to sever the mandate from the rest of the law , I @ @ @ @ @ @ @ be a huge , huge deal to pull the Affordable Care Act out of the health care system after it spent a decade kind of integrating into all of our lives .
DAVIES : Right .
And to just get a little technical for a moment , I mean , this idea that one part of a law - the invalidation of one part of a law invalidates all of a law .
Surely that issue comes up in many , many different kinds of legislation at every level .
This is a @ @ @ @ @ @ @ no , it 's definitely not a new issue .
And it 's come up recently in the Supreme Court .
And it 's actually given defenders of the Affordable Care Act some hope that the Affordable Care Act will survive , given how conservative justices have written on it .
There 's an opinion that came out earlier this year written by Justice Kavanaugh that deals with this issue of severability and it feels quite pertinent to the Affordable Care Act case , where Justice Kavanaugh , you know , really advocates @ @ @ @ @ @ @ saying , you know , that they should not be trying to strike down entire laws based on tiny portions .
So that Kavanaugh opinion from earlier this year , it kind of gives us some insight into how he thinks about the severability issue , which , like you mentioned , is not new .
It 's just going to get a lot more attention with this Affordable Care Act case .
DAVIES : Right .
Now , of course , this case comes at a particularly interesting time because , you @ @ @ @ @ @ @ are trying to get Judge Amy Coney Barrett approved by the Senate and sworn in before the case is heard .
What effect might that have ?
KLIFF : So interestingly , you know , I spent some time reporting on this a few weeks ago , and most of the folks I talked to actually do n't think there will be a big impact on this case .
They were generally expecting this case not to succeed at the Supreme Court and were even raising the possibility of a 9-0 , 8-1 @ @ @ @ @ @ @ to know about this court challenge is a lot of the legal scholars who have supported previous Obamacare challenges think the argument is very weak , especially that jump from the first part to the second part , this idea of saying the mandate is not severable is kind of an overreading of what Congress meant to do when they zeroed out those penalties .
So , you know , when I 've interviewed folks who follow the court closely , they actually do n't think it 'll make a big difference in @ @ @ @ @ @ @ at the writings of some conservative justices , particularly Justice Kavanaugh on severability , and think that they might be inclined to uphold the Affordable Care Act in this particular challenge .
That being said , you know , the Supreme Court is unpredictable .
We 're in unpredictable , unknown times .
So anything could happen .
But the bright minds I have talked to do not think this particular case is especially affected by that change in who is holding the seat on the court .
DAVIES : We 're going @ @ @ @ @ @ @ me reintroduce you .
We 're speaking with Sarah Kliff .
She 's an investigative reporter for The New York Times covering the American health care system .
We will continue our conversation after this short break .
I 'm Dave Davies , and this is FRESH AIR .
DAVIES : This is FRESH AIR .
I 'm Dave Davies , in today for Terry Gross .
We 're speaking with Sarah Kliff , an investigative reporter for The New York Times who covers the American health care system .
We 're talking @ @ @ @ @ @ @ people with preexisting conditions and the latest legal challenge to the Affordable Care Act , which will be argued before the U.S. Supreme Court next month .
You know , President Trump has said and , according to your writing , his core followers believe that he is committed to preserving health insurance for people with preexisting medical conditions .
Democrats say that if you look at what Trump 's actually doing , that the administration is in court specifically trying to strike down those protections .
Are they right ?
KLIFF : @ @ @ @ @ @ @ would say , generally , when you look at President Trump 's record , it is not one of trying to uphold protections from preexisting - for Americans with preexisting conditions .
It starts with support for repealing the Affordable Care Act , which created those protections , and a number of plans circulated by Republicans that would not continue those protections , despite some statements they made about it .
And then it really continues up through this legal challenge where , you know , it is not the Trump administration itself @ @ @ @ @ @ @ Department did file a brief over the summer that supported the challenge and said that it also agreed that protections for preexisting conditions should fall if the mandate is ruled unconstitutional .
So I do not think it is accurate to say , as President Trump repeatedly does say , that he is for protecting preexisting conditions .
What we know of his policy record , his administration 's litigation record , is that they 've done a number of things that would erode those consumer protections .
DAVIES : And I guess @ @ @ @ @ @ @ , once it 's gone , we 'll come up with something that 's better .
It 's not just repeal ; it 's repeal and replace .
What does the record show about the likelihood of that happening ?
KLIFF : Yeah , it 's funny you mention that because , you know , I remember when President Trump was inaugurated - or right before his inauguration , he started saying there was going to be a health care plan , and all the health reporters were kind of , you know @ @ @ @ @ @ @ , oh , what 's the Trump plan ?
What 's the Trump plan ?
And we just - you know , we 're four years out from that , and we just have not seen a plan .
The White House constantly promises that a new plan is coming .
They 've done that in recent weeks .
And then it just does n't turn up .
Obviously , it could at some point .
But if you look at the past four years , it 's a lot of promising from @ @ @ @ @ @ @ to be a plan ; it 's going to do as well as Obamacare at protecting preexisting conditions .
But so far , no one has seen that plan .
DAVIES : There were some congressional initiatives - right ?
- to provide some kind of an alternative while repealing Obamacare , right ?
KLIFF : There were .
There were .
And none of them , you know , had the same protections for preexisting conditions that you see in the Affordable Care Act .
So , you know , sometimes you @ @ @ @ @ @ @ of course , we 're going to protect preexisting conditions for Americans with continuous coverage - meaning , you know , if you stay insured , if you never have an uninsured month , then insurance companies ca n't deny you .
But that obviously leaves out someone who has a gap in coverage - or , you know , they 'd say we 're going to require insurance companies to accept people with preexisting conditions but get rid of the Obamacare requirements that bar them from charging those people more .
So @ @ @ @ @ @ @ that were , you know , further beyond what existed before Obamacare , but you did not see those plans matching the protections that exist in current law because of the Affordable Care Act .
DAVIES : You know , the act also included a number of measures that were designed to reduce costs in the health care system - you know , reimbursements for hospitals for Medicare patients , those kinds of things .
Are they still in effect ?
KLIFF : They are still in effect .
You know , the @ @ @ @ @ @ @ programs , and these ones tend to be less political .
They 're not really the focus of the debate .
But those generally are still in effect .
I 'd say they have a mixed track record - some of them more successful than others in reducing costs .
But those parts of the Affordable Care Act continue through this day .
DAVIES : The president did sign an executive order recently which established as policy that the administration favors the preservation of insurance for people with preexisting conditions .
What did @ @ @ @ @ @ @ , it provided a nice photo op to sign the executive order .
But in terms of what that actually changes policywise , the answer is nothing .
You know , that 's just not how laws work in the United States .
They have to go through Congress .
And with the health care system as complex as the United States , you know , it 's not really about signing a piece of paper saying , we protect preexisting conditions ; it 's about actually writing the rules for how insurance @ @ @ @ @ @ @ what that means .
So let 's say the Supreme Court , you know , rules in favor of the challengers ; it says all of Obamacare is unconstitutional .
That executive order is not going to do anything to keep Obamacare 's preexisting condition protections on the books .
DAVIES : This is an issue in the fall campaign , and Democrats are really talking a lot about protecting protections for people with preexisting conditions .
And they managed to get a vote in the Senate on a bill , which had @ @ @ @ @ @ @ would have , in effect , barred the Trump administration from continuing its intervention in this case to strike down the Affordable Care Act .
What happened there ?
KLIFF : Yeah , I think , broadly , what you see happening in the two political parties is a big role reversal .
You know , if you look back at the conventions in 2012 and 2016 , Republicans loved to talk Obama - about Obamacare .
They were constantly talking about Obamacare repeal and getting rid of the law and how terrible @ @ @ @ @ @ @ 2020 and Republicans are not really saying much .
You know , I watched most of the Republican convention and , you know , did a story about this , that Obamacare was mentioned just once the entire Republican convention , whereas Democrats are quite enthusiastic to talk about it .
They want to talk about preexisting conditions .
They want to talk about repeal in a way Republicans no longer do .
And I think that 's what you see with this Senate vote .
Heading into the election , particularly with @ @ @ @ @ @ @ , Democrats are quite , quite eager to make health care a big issue over the next few weeks .
And , you know , you see that in the Senate vote .
You see that in the first presidential debate , where Joe Biden immediately starts talking about the Affordable Care Act and preexisting conditions when the debate opens .
You know , it 's an issue Democrats want to talk about in a way that was not true , you know , in the last two election cycles .
DAVIES : @ @ @ @ @ @ @ you know , Social Security and Medicare were really controversial when they were passed , but at some point , they become , you know , just a part of the infrastructure and accepted and embraced by just about everybody .
KLIFF : Yeah , I think you 're right .
This is kind of what we see with social welfare programs .
I will say , for Medicare , Medicaid , Social Security - they did not face quite the blowback that the Affordable Care Act did .
You know , they @ @ @ @ @ @ @ we 're seeing with the Affordable Care Act , which , you know , as we 've already discussed , is still facing a lawsuit in the Supreme Court to overturn it .
But in general , you know , it becomes a lot harder to repeal this , and you saw this in the 2017 repeal effort .
It 's so much harder to repeal a law that covers millions of Americans than it is to - you know , trying to stop it while it 's being drafted .
This is @ @ @ @ @ @ @ of people .
And it would be quite noticeable to them if that benefit were taken away .
DAVIES : Yeah , it 's interesting that while , you know , national Republicans in an election year are not talking about this stuff much , I mean , there are 20 Republican attorneys general who are generally elected - right ?
- they 're politicians - and they were prepared to go to court and try and knock Obamacare out .
Is there an incentive among their supporters or donors here ?
I @ @ @ @ @ @ @ a matter of some of these taxes ?
Or - why does it still get energy ?
KLIFF : You know , that is something that continues to puzzle me to this day is why pursue this challenge ?
You know , it seems like - I am not a political strategist .
But just , you know , from writing about the issue , it seems like a big liability to have this case on preexisting conditions coming just days after the election .
I will say one thing that 's a @ @ @ @ @ @ @ challenges is it 's not generally supported by a lot of the mainstream conservative legal community .
This kind of came up more from the fringe and then proved quite successful in lower district courts .
But , you know , at the same time , like you said , there 's 20 attorney generals who signed onto it .
So it 's not like this is totally out of left field .
It 's getting some support from kind of the - from very important figures within the party .
And I @ @ @ @ @ @ @ around it , why you would want to be pursuing this kind of Supreme Court case in an election year .
DAVIES : One other issue , you know , the president says he 's done an awful lot to fight high prescription drug costs .
Has he ?
KLIFF : You know , this is another one where we kind of see a lot of talk about it .
And we saw an executive order last week that 's signed at the same time as the executive order around preexisting conditions .
@ @ @ @ @ @ @ policy movement on the topic .
President Trump , you know , does like to claim drug prices are lower .
He said at the last presidential debate that insulin is now as cheap as water , which any diabetic would tell you is not true .
Insulin is much more expensive than water , much more expensive in the United States than other countries .
But - so we have n't really seen much movement .
It 's clearly an area of focus for the president .
He talks about it a @ @ @ @ @ @ @ about , you know , what sort of health care issues they 're dealing with , drug prices often comes up as the kind of most frustrating - medical bills they 're receiving .
But we actually have n't seen much policy movement that would lower those drug prices .
DAVIES : Right .
There were some negotiations with the pharmaceutical industry which did n't yield an agreement , right ?
And then the president talked about issuing $ 200 voucher or cards to older Americans - right ?
- soon , this @ @ @ @ @ @ @ we 're still waiting to see what is going to happen with those cards , if they actually exist or not .
There are certainly some questions about the legality of sending out $ 200 vouchers to a number of voters in the weeks leading up to an election .
They claim they have authority under certain waiver rules that allow them to test out new programs .
But I think , you know , if they do actually move forward on sending those out , you might see them challenged in court @ @ @ @ @ @ @ 's going on with those vouchers .
They were mentioned a few weeks ago .
But , you know , in the past week or so , we have not heard anything about them .
Obviously , there 's been a lot going on with the president in the past week or so that might overshadow that .
DAVIES : Right , right .
Let me take a break here .
I want to reintroduce you again here .
Sarah Kliff is an investigative reporter for The New York Times covering the American @ @ @ @ @ @ @ our conversation after this short break .
This is FRESH AIR .
DAVIES : This is FRESH AIR , and we 're speaking with Sarah Kliff .
She 's an investigative reporter for The New York Times .
She 's been covering national health care policy for more than 10 years .
You 're kind of obsessed with medical costs and charges .
DAVIES : You love to collect data on this .
And , you know , there are federal laws that govern costs for COVID-19 tests .
And many insurance companies @ @ @ @ @ @ @ know , there will be no co-pays .
Have you found that to be the truth , that the case ?
KLIFF : Yeah .
You know , in most situations , it is .
But there 's also a lot of people who are facing surprise medical bills due to their coronavirus testing and treatment .
We 've worked with some data companies .
And we estimate that about 2.4 % of Americans face some kind of charge that they have to pay for their coronavirus test , despite the requirement that @ @ @ @ @ @ @ , you know , that number might seem small .
But keep in mind , there 's been 108 million coronavirus tests in the United States .
So when you start doing the numbers , 2.4 % of that is actually millions of Americans facing some kind of bill for coronavirus tests .
You know , I 'm just starting to get further into understanding the costs of coronavirus treatment .
And , again , they 're - you 're starting to see patients who are getting bills they did n't expect for @ @ @ @ @ @ @ thought was going to be covered by their insurance company .
DAVIES : Right .
And sometimes going to get a test , you can also be charged for a doctor 's visit .
I mean , what kinds of bills are you seeing among those who get them ?
KLIFF : Yeah .
So you definitely see - one of the things , I think , that 's pretty common in these surprise bills is a situation you mentioned where someone goes to a doctor 's office or an emergency room for @ @ @ @ @ @ @ test is covered by the insurance company , but something else that happened is not covered .
Sometimes , that 's an emergency room facility fee , kind of the price of going to an emergency room , which I 've seen emergency rooms applying to drive-through sites .
People do n't actually enter the emergency room , but they still receive the facility fee for driving through and getting their tests there .
I 've seen a number of providers tacking on flu tests or , in some even more egregious examples @ @ @ @ @ @ @ know , they just thought they were getting a drive-through coronavirus test .
And now , they see a dozen or so different items from the lab that they were billed for , some of them the insurance is not required to cover .
So it just - it 's really hard to know .
And patients typically only find out , you know , what was tacked onto their bill when they get the charges in the mail .
DAVIES : You know , health care treatment is very private .
And @ @ @ @ @ @ @ to share data about this .
How do you find out what people are paying for these bills ?
KLIFF : So I find out by asking readers to send me their bills .
It sounds like a kind of insane way to investigate this .
But , you know , I found , with some previous work I did on emergency room billing , that the best way to understand what patients are being charged is to actually see the billing documents themselves .
Insurance companies and hospitals typically keep those numbers @ @ @ @ @ @ @ share them .
They do not publish some list of their charges .
So I get my information from what patients are willing to send me and , in this case , what they 're willing to send me for their coronavirus testing and treatment bills .
DAVIES : So if somebody wants to send you their bills , what do they do ?
KLIFF : They just go to a very simple URL - nytimes.com/costofcare .
There 's a really easy way just to upload a picture or a PDF or whatever @ @ @ @ @ @ @ bill .
And it would be such a huge help to the work I 'm doing trying to understand the costs of this disease .
DAVIES : So what are you going to be focusing on the next few months ?
KLIFF : Well , you know , I think - like a lot of my colleagues - I 'm focused a little bit on the election and what are going to be the consequences for health care , you know , depending on who wins .
We 'll have the Supreme Court @ @ @ @ @ @ @ November 10 , and an eventual decision on that is going to be a pretty big deal .
And then the other thing is , you know , understanding the billing experience that patients are having due to coronavirus .
I 'm trying to understand - I know a lot about testing now , but I know less about treatment , and I 'd like to understand that better .
And then I think - you know , big-picture , zooming out a little bit - you know , one of the things @ @ @ @ @ @ @ lately is that the health care system lost a lot of money due to coronavirus , due to all that canceled and delayed care .
And how does it react to that ?
Do we see hospital closures ?
Do we see new fees being tacked on to doctor visits ?
I 'm pretty interested in how the health care system deals with this reality of losing a lot of money in 2020 .
DAVIES : Yeah .
You know , you 've written about how many preventative tests just are n't happening @ @ @ @ @ @ @ we going to see an increase in - I do n't know - measles , undetected breast cancer or colon cancer or prostate cancer ?
KLIFF : Yeah , it 's hard to know .
And I think it 's going to take , you know , a few years to really understand the consequences of all this missed preventative care .
I think we 're going to learn a lot about how necessary or unnecessary that care is based on what happens in this experience .
And that is one of the @ @ @ @ @ @ @ primary care experts worry about - is that all this skipped care might lead to more breast cancer deaths , more colon cancer deaths .
But these are kind of the ripple effects we 're going to have to wait months or even years to fully understand .
DAVIES : I 'm wondering if - kind of what macro impacts you might be seeing in the health care system from the pandemic - I mean , rural health care being degraded as opposed to urban health care ; you know , some hospitals @ @ @ @ @ @ @ : Yeah .
I think , generally , what you see is that the hospitals that were well-positioned and quite wealthy before the coronavirus pandemic are having an OK time weathering the storm .
They had reserves and could survive something like this , whereas those that were , you know , already running tight margins , running a loss - and when I think of those , I think of rural hospitals , hospitals serving urban , low-income populations - those are the ones that , you know , you worry about @ @ @ @ @ @ @ off certain service lines that cost them more money to run .
And the one area I worry about the most is , really , primary care because you 've seen their revenue just decimated as Americans put off a lot of the preventive care that is , you know , typically delivered at their doctor 's office .
They were already , you know , some of the less-profitable , lower-margin type of doctor offices we have in the United States , and now with this big hit to their business , @ @ @ @ @ @ @ that part of our health care system .
DAVIES : Again , Sarah Kliff , if people want to send copies of their medical bills to you for your research , how do they do that ?
KLIFF : They just go to nytimes.com/costofcare .
And there 's a really simple form to fill out where they can do that .
DAVIES : Well , Sarah Kliff , thank you so much for speaking with us again .
KLIFF : Yeah , thank you so much for having me .
DAVIES : Sarah @ @ @ @ @ @ @ New York Times covering the American health care system .
Coming up , jazz critic Kevin Whitehead reviews an album from a trio of road musicians who came together to record something special .
This is FRESH AIR .

Will The Affordable Care Act Survive The Next Supreme Court Challenge?
"Republicans have been trying to drive a stake into the heart of Obamacare pretty much since it was passed — both through legislation and litigation," New York Times reporter Sarah Kliff says.
DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies, in today for Terry Gross. One week after the presidential election, the U.S. Supreme Court will hear oral arguments in the latest challenge to the Affordable Care Act. Republicans have sought to put an end to Obamacare through litigation and legislation for most of the 10 years it's been in effect.
The current legal challenge could be decided by a court with a six-vote conservative majority if President Trump's nominee, Judge Amy Coney Barrett, is confirmed and sworn in by then. All this happens as candidates this fall debate the issue of preserving health insurance for people with preexisting conditions, and President Trump's handling of the COVID-19 pandemic and his own infection are issues in the campaign.
For insight today, we turn to Sarah Kliff, an investigative reporter for The New York Times who focuses on national health policy. Kliff has been covering the beat for more than 10 years for several media outlets, including Politico, Newsweek, The Washington Post, Vox and now The New York Times. She spoke to me from her home in Washington, D.C.
Sarah Kliff, welcome back to FRESH AIR.
SARAH KLIFF: Thank you for having me.
DAVIES: We planned this interview to talk about the Affordable Care Act, but I have to begin by getting your take on the president's experience with COVID-19. There's been so much discussion and criticism of the president's conduct and that of other members of his administration when it comes to, you know, precautions for the coronavirus. What's your take on that?
KLIFF: You know, I think it is certainly the case that when you see some of those photographs from the past weekend of the ceremony for Amy Coney Barrett, other events at the White House, that you do see a lack of distancing, you know, compared to what a lot of Americans have been observing over the past few months and what the CDC has recommended.
And I think it is certainly jarring, you know, for someone like me - who hasn't hugged anyone, you know, besides my husband in the past six, seven months - to see, you know, folks freely hugging each other. It's a bit jarring, and it's a bit different from the experience a lot of Americans have been having living through this pandemic.
DAVIES: You and I are speaking on Wednesday morning. There's been a lot of criticism of the president returning to the White House and of some of his messaging. You know, it's - which has been sort of, you know, the - you know, the virus is - you know, I took it on. Don't let it run - rule your life. I mean, how do you think this whole experience might affect Americans' perception of the threat of COVID-19?
KLIFF: Oh, I think it'll definitely affect Americans' perception of the threat of COVID-19, particularly among Trump supporters. You know, he was tweeting on Monday, slightly before his return to the White House, you know, don't be afraid of COVID; don't let it dominate your life. We saw him take off a mask in a pretty public way. And I think one of the things we've learned over the past four years - which, you know, maybe is surprising; maybe isn't - but particularly Trump supporters, they really do take what the president tells them at face value.
You know, this is slightly separate, but I think it's related. Last week, I reported a story about how President Trump's voters think about his record on preexisting conditions, and most of them think the president will protect preexisting conditions because he constantly says he will in rallies and tweets, on Facebook, when in actuality, his policy record is the complete opposite of that. It's been a lot of work to try and get rid of those consumer protections.
But I think one of the things that has driven home to me that is a bit applicable here is that the president's supporters, you know, they take what he's saying at face value. We're used to trusting our leaders and assuming that they are not lying to us; they're telling the truth. And I think you will see a number of folks kind of taking Trump's message to heart and, you know, deciding I don't need to be afraid of this because our president isn't afraid of it.
DAVIES: Right. And that would be among his core supporters. Of course, he's in an election where he needs others. How might this affect the views of others - independents, Democrats?
KLIFF: Yeah, I think that's a more challenging, you know, question to answer. We have seen some polling suggesting that there is not much trust in the White House when it comes to President Trump's health condition and the information being put out. So I do think I agree with you, Dave, there - that, you know, this might rally his base and they're going to take to heart what he is saying.
But I think you do see, out in the real world, a lot of folks support masks. There's widespread support for mask mandates, you know, even across political parties, that this might alienate some folks who are on the fence, who feel like they're living their lives very differently because of the threats of coronavirus and are not seeing the president do the same thing.
DAVIES: So let's talk about the Affordable Care Act, Obamacare, and what remains. You know, in 2017, the penalties associated with the individual mandate were removed, which was, you know, considered a big part of the law. So let's look at what's still standing and what is still in effect. It's still illegal to deny coverage to someone with preexisting conditions. Kids can remain on their health care plans until age 26. That all still in effect?
KLIFF: That is all still in effect.
DAVIES: And what about the minimum requirements for health care plans offered on the exchanges? Has that changed?
KLIFF: That hasn't changed. But I will say one of the things that has changed is the Trump administration has loosened the rules around the sales of what are called short-term health insurance plans. These are plans that typically last less than a year of coverage. And what the Trump administration has done differently than the Obama administration - it has allowed these plans to exist and not cover the minimum benefits. So this means you could have plans that don't cover prescription drugs, don't cover maternity care. Those type of plans were quite common before the Affordable Care Act on the individual market.
And so we are seeing, you know, while on the marketplace, on healthcare.gov or the state-run marketplaces, all the minimum benefits are required, we are seeing off-marketplace these skimpier plans that might have cheaper premiums but also offer less robust services. Those are growing in numbers in terms of what Americans are able to purchase.
DAVIES: Yeah. I mean, health care is so confusing and complicated that I could imagine people picking the lower price, not realizing what they're not getting.
KLIFF: Exactly. And you do see some pretty aggressive marketing by some of these short-term plans. I mean, I've even received calls on my phone, you know, from folks who are trying to sell me individual insurance. And I often start asking a lot of questions and get hung up on when I start kind of probing into the benefits that they would offer.
So - but you could certainly see that happening. And usually you only realize that the benefits aren't what you thought they were when you have some kind of medical need, an emergency, and all of a sudden, you have these bills you didn't expect, and then you really start researching - what is this I purchased? And you realize what you purchased isn't really what you thought it was.
DAVIES: One of the parts of the act which really increased health insurance for a lot of people was the expansion of Medicaid, then funded largely by federal subsidies. Is that expansion still largely in place?
KLIFF: It is. It is, and it's growing. One of the things we've seen over the past few years is about a half-dozen states have expanded Medicaid via ballot initiatives. Republican governors, many remain resistant to Medicaid expansion. They don't want to sign up for it. And we've seen a number of grassroots organizers kind of take this question directly to the voters, and when they do, it's quite successful. So just this year alone, both Oklahoma and Missouri have decided to join the Medicaid expansion. And that happened via ballot initiatives; that didn't happen through the legislature.
So one of the things we've really learned over a decade of the Affordable Care Act is it's that expansion of Medicaid and expansion of public coverage, that's what's driving most of Obamacare's enrollment. It's not the subsidized private plans; it's the free public plans that are bringing a lot of people into coverage.
DAVIES: And do states have to cover most of the cost of this now?
KLIFF: They don't. The federal government pays 90% of the costs, and states foot about 10% of the costs. That is a more generous match than what exists in the traditional Medicaid program. Usually it's closer to 50-50 or 60-40. So it's really a big, enhanced match, and that was a key part of getting the Affordable Care Act passed. The drafters wanted to say to states, this is not going to be onerous on you; you're only going to have to kick in a little bit to get a lot of people covered.
DAVIES: And do we know overall what the fiscal impact of the act is? I mean, a lot more Americans are insured than before. Is costing us a lot?
KLIFF: You know, generally, the Affordable Care Act has come in below cost estimates. We've seen the Congressional Budget Office revise downward how much they think the law costs, and that actually comes back to the type of coverage people are getting. Enrollment in Medicaid is higher than expected. Enrollment in the private plans is lower than expected. And Medicaid typically pays lower prices to doctors than private insurance plans do. So generally - you know, it obviously costs money to get people covered, but it is costing the federal government less money than was expected when the law was passed a decade ago.
DAVIES: We're going to take a break here. Let me reintroduce you. We're speaking with Sarah Kliff of The New York Times. She's an investigative reporter who covers the American health care system. We will continue our conversation in just a moment. This is FRESH AIR.
(SOUNDBITE OF SLOWBERN'S "WHEN WAR WAS KING")
DAVIES: This is FRESH AIR, and we're speaking with Sarah Kliff. She's been covering the American health care system and national health policy for more than 10 years. She's an investigative reporter for The New York Times.
The big blow to Obamacare was in 2017 when the tax bill was passed. And it eliminated the penalties that were associated with people not getting health insurance, right? The requirement is technically still there, but a zero penalty, so it's lost its teeth. And I think a lot of people thought, uh-oh, because, you know, the whole idea was, if we're going to provide more protection for people with preexisting conditions and all of these other benefits, we've got to get younger, healthier people into the system so that the finances work. What's been the impact on some of those younger, healthier folks staying in or getting in or getting out now that there's no penalty for them declining coverage?
KLIFF: Yeah, this was something that surprised health economists is they constantly talked about Obamacare as - they'd use this analogy of a three-legged stool. And one leg is, you know, getting rid of preexisting conditions - you let everyone in. The other leg is subsidies - you make it affordable. And the third leg is the mandate - you make everyone buy coverage, even people who don't think they need it. And health economists spent, you know, the better part of a decade saying you cut off any leg, and the stool just tumbles over.
And Republicans did cut off one of the legs, and it hasn't really tumbled. You know, we just got the health insurance numbers from the census for 2019, which is the first year without the mandate, and there wasn't really any noticeable change. A lot of economists have gone back and kind of no longer think the mandate was quite as important as they initially did when they were drafting the Affordable Care Act. I kind of loved - what one economist told me was that, you know, maybe it's not a three-legged stool. Maybe it's kind of like the wobbly table at a restaurant that isn't perfect, but, like, it works, and it does the job you need to do to eat your dinner.
The mandate, it turns out, was a kind of weak penalty. The size of it wasn't very big compared to the size of purchasing health insurance. And one of the things I think economists have realized that the subsidies, the things that make insurance affordable on the Obamacare marketplace, that's really what got people enrolled, not the mandate to enroll, but the money to make it affordable.
DAVIES: So the idea that young, healthy people would just, you know, roll the dice and go without insurance turns out not to be true. I mean, they realize it's actually something worth doing if you can make it affordable.
KLIFF: Exactly. And a lot hinges on the last thing you said - the if you can make it affordable - that we're seeing, you know, with the way these subsidies are structured, they go up with the cost of health insurance. So if you are someone in the subsidized population, you're always going to have your premium capped at a certain share of your income.
And it turns out that structure has worked really well. It's made insurance affordable for millions of Americans who couldn't afford it before now, whereas, you know, a kind of small mandate, it just wasn't getting the job done. The carrot was good enough that you didn't really need the stick.
DAVIES: So where are we now in the increase of the number of Americans insured since the act was passed or, conversely, the decline in those uninsured?
KLIFF: Yeah, so we've seen about 20 million Americans gain health insurance since the Affordable Care Act was enacted. Those numbers were generally going up during the Obama administration, and then they've ticked downwards a little bit in the Trump administration. We did, like I mentioned earlier, get recent census data last month, which showed health insurance rates were basically holding stable in 2019 after declining a notable amount in 2018. So generally, you know, it fluctuates a little bit year to year. But we're talking about 20 million Americans who have health insurance compared to pre-Affordable Care Act times.
DAVIES: Republicans have been trying to drive the stake into the heart of Obamacare pretty much since it was passed, both through legislation and litigation. And so far, it's standing. But, you know, the health care system's complicated. And if these threats are hovering, I wonder how they have affected the market and the actions of insurance companies and hospitals and others in the system.
KLIFF: You know, it's actually been relatively stable in kind of a surprising way. As you mentioned, you know, Obamacare has been under threat since the day it was passed - multiple repeal attempts, multiple Supreme Court cases, a lot of governors doing what they can to block the law in their states. But the law has actually been relatively stable. We saw some pretty swift premium increases when the marketplaces launched in 2014. Those have kind of petered out a little bit.
You know, usually each year, there's about nine to 10 million people who buy coverage on the marketplaces. That number might increase significantly this year with people losing their coverage that came along with the jobs they used to have before the pandemic. But it's been surprisingly stable. It surprised me. It surprised a lot of sources that I talked to, given all these efforts to take the Affordable Care Act down.
DAVIES: So let's talk about this court case, which is going to be argued a week after the election. The caption on the case is California v. Texas. Who are the plaintiffs in this case? What's their argument for knocking down Obamacare?
KLIFF: Yeah. So it's a little confusing because the plaintiffs in this case are actually the ones defending the Affordable Care Act. So why don't I tell you about the challengers to the Affordable Care Act and kind of what they are arguing? So the challengers is a group of Republican attorneys general. And they are making a two-part argument that's a little complex, but I'll do my best to try and summarize that. It all starts with this 2017 tax bill we talked about earlier that dropped the individual mandate penalties to zero dollars. They make the argument that without a tax, without a number attached to it, the mandate is unconstitutional. If you remember back to the 2012 decision that upheld the individual mandate, the Supreme Court ruled there that it was constitutional because of the federal government's taxing powers. They say no tax, now it's unconstitutional. So that's the first part in their argument. The second part is really what the case hinges on. They argue that the mandate is so key to the Affordable Care Act. It's such a crucial part of the law that if the court finds the mandate to be unconstitutional, it needs to strike the rest of the law down. In legal terms, they are saying that the individual mandate is inseverable from the rest of the Affordable Care Act and that if a court finds the mandate unconstitutional, that everything - the protections on preexisting conditions, the Medicaid expansion, you know, really far-off provisions like requirements to post calorie labels in restaurants - all of that needs to fall if the mandate is unconstitutional.
DAVIES: Right. You know, that argument that if one part falls, the rest of it must fall just always struck me as more of a debating point than a legal argument. I guess the connection to the Constitution is to the taxing authority of Congress here, huh?
KLIFF: It is. So it all kind of comes back to the taxing authority of Congress. And I think there are, you know, some liberal legal scholars who say, you know, maybe that first part of the argument is right. You know, maybe there really isn't a case for upholding the mandate anymore, but it's kind of a so what of it at this point. The penalty is zero dollars. Having the mandate struck down as unconstitutional really wouldn't change Obamacare much one way or another. The real question of this case sits on this question of severability, of if the court decides that they are not going to sever the mandate from the rest of the law, I mean, that's - that would be a huge, huge deal to pull the Affordable Care Act out of the health care system after it spent a decade kind of integrating into all of our lives.
DAVIES: Right. And to just get a little technical for a moment, I mean, this idea that one part of a law - the invalidation of one part of a law invalidates all of a law. Surely that issue comes up in many, many different kinds of legislation at every level. This is a new issue?
KLIFF: No, no, it's definitely not a new issue. And it's come up recently in the Supreme Court. And it's actually given defenders of the Affordable Care Act some hope that the Affordable Care Act will survive, given how conservative justices have written on it. There's an opinion that came out earlier this year written by Justice Kavanaugh that deals with this issue of severability and it feels quite pertinent to the Affordable Care Act case, where Justice Kavanaugh, you know, really advocates for a narrow interpretation of severability, saying, you know, that they should not be trying to strike down entire laws based on tiny portions. So that Kavanaugh opinion from earlier this year, it kind of gives us some insight into how he thinks about the severability issue, which, like you mentioned, is not new. It's just going to get a lot more attention with this Affordable Care Act case.
DAVIES: Right. Now, of course, this case comes at a particularly interesting time because, you know, President Trump and the Republicans are trying to get Judge Amy Coney Barrett approved by the Senate and sworn in before the case is heard. What effect might that have?
KLIFF: So interestingly, you know, I spent some time reporting on this a few weeks ago, and most of the folks I talked to actually don't think there will be a big impact on this case. They were generally expecting this case not to succeed at the Supreme Court and were even raising the possibility of a 9-0, 8-1 decision against this challenge. One thing to know about this court challenge is a lot of the legal scholars who have supported previous Obamacare challenges think the argument is very weak, especially that jump from the first part to the second part, this idea of saying the mandate is not severable is kind of an overreading of what Congress meant to do when they zeroed out those penalties. So, you know, when I've interviewed folks who follow the court closely, they actually don't think it'll make a big difference in this case. And they also look at the writings of some conservative justices, particularly Justice Kavanaugh on severability, and think that they might be inclined to uphold the Affordable Care Act in this particular challenge. That being said, you know, the Supreme Court is unpredictable. We're in unpredictable, unknown times. So anything could happen. But the bright minds I have talked to do not think this particular case is especially affected by that change in who is holding the seat on the court.
DAVIES: We're going to take another break here. Let me reintroduce you. We're speaking with Sarah Kliff. She's an investigative reporter for The New York Times covering the American health care system. We will continue our conversation after this short break. I'm Dave Davies, and this is FRESH AIR.
(SOUNDBITE OF HUTCHINSON ANDREW TRIO'S "MINTAKA (FEAT. DONNY MCCASLIN)")
DAVIES: This is FRESH AIR. I'm Dave Davies, in today for Terry Gross. We're speaking with Sarah Kliff, an investigative reporter for The New York Times who covers the American health care system. We're talking about campaign debates over insurance coverage for people with preexisting conditions and the latest legal challenge to the Affordable Care Act, which will be argued before the U.S. Supreme Court next month.
You know, President Trump has said and, according to your writing, his core followers believe that he is committed to preserving health insurance for people with preexisting medical conditions. Democrats say that if you look at what Trump's actually doing, that the administration is in court specifically trying to strike down those protections. Are they right?
KLIFF: Sort of. Mostly. So I would say, generally, when you look at President Trump's record, it is not one of trying to uphold protections from preexisting - for Americans with preexisting conditions. It starts with support for repealing the Affordable Care Act, which created those protections, and a number of plans circulated by Republicans that would not continue those protections, despite some statements they made about it.
And then it really continues up through this legal challenge where, you know, it is not the Trump administration itself that is suing, but the Justice Department did file a brief over the summer that supported the challenge and said that it also agreed that protections for preexisting conditions should fall if the mandate is ruled unconstitutional. So I do not think it is accurate to say, as President Trump repeatedly does say, that he is for protecting preexisting conditions. What we know of his policy record, his administration's litigation record, is that they've done a number of things that would erode those consumer protections.
DAVIES: And I guess what they would say is, well, once it's gone, we'll come up with something that's better. It's not just repeal; it's repeal and replace. What does the record show about the likelihood of that happening?
KLIFF: Yeah, it's funny you mention that because, you know, I remember when President Trump was inaugurated - or right before his inauguration, he started saying there was going to be a health care plan, and all the health reporters were kind of, you know, jittering to see it. Like, oh, what's the Trump plan? What's the Trump plan? And we just - you know, we're four years out from that, and we just have not seen a plan. The White House constantly promises that a new plan is coming. They've done that in recent weeks. And then it just doesn't turn up.
Obviously, it could at some point. But if you look at the past four years, it's a lot of promising from the White House that there is going to be a plan; it's going to do as well as Obamacare at protecting preexisting conditions. But so far, no one has seen that plan.
DAVIES: There were some congressional initiatives - right? - to provide some kind of an alternative while repealing Obamacare, right?
KLIFF: There were. There were. And none of them, you know, had the same protections for preexisting conditions that you see in the Affordable Care Act. So, you know, sometimes you'd see things like, well, of course, we're going to protect preexisting conditions for Americans with continuous coverage - meaning, you know, if you stay insured, if you never have an uninsured month, then insurance companies can't deny you. But that obviously leaves out someone who has a gap in coverage - or, you know, they'd say we're going to require insurance companies to accept people with preexisting conditions but get rid of the Obamacare requirements that bar them from charging those people more.
So you did see some steps towards protection that were, you know, further beyond what existed before Obamacare, but you did not see those plans matching the protections that exist in current law because of the Affordable Care Act.
DAVIES: You know, the act also included a number of measures that were designed to reduce costs in the health care system - you know, reimbursements for hospitals for Medicare patients, those kinds of things. Are they still in effect?
KLIFF: They are still in effect. You know, the administration is still running a number of programs, and these ones tend to be less political. They're not really the focus of the debate. But those generally are still in effect. I'd say they have a mixed track record - some of them more successful than others in reducing costs. But those parts of the Affordable Care Act continue through this day.
DAVIES: The president did sign an executive order recently which established as policy that the administration favors the preservation of insurance for people with preexisting conditions. What did that provide?
KLIFF: I mean, it provided a nice photo op to sign the executive order. But in terms of what that actually changes policywise, the answer is nothing. You know, that's just not how laws work in the United States. They have to go through Congress. And with the health care system as complex as the United States, you know, it's not really about signing a piece of paper saying, we protect preexisting conditions; it's about actually writing the rules for how insurance companies have to act and spelling out what that means.
So let's say the Supreme Court, you know, rules in favor of the challengers; it says all of Obamacare is unconstitutional. That executive order is not going to do anything to keep Obamacare's preexisting condition protections on the books.
DAVIES: This is an issue in the fall campaign, and Democrats are really talking a lot about protecting protections for people with preexisting conditions. And they managed to get a vote in the Senate on a bill, which had no chance of passing, but which would have, in effect, barred the Trump administration from continuing its intervention in this case to strike down the Affordable Care Act. What happened there?
KLIFF: Yeah, I think, broadly, what you see happening in the two political parties is a big role reversal. You know, if you look back at the conventions in 2012 and 2016, Republicans loved to talk Obama - about Obamacare. They were constantly talking about Obamacare repeal and getting rid of the law and how terrible it was. And now flash-forward to 2020 and Republicans are not really saying much.
You know, I watched most of the Republican convention and, you know, did a story about this, that Obamacare was mentioned just once the entire Republican convention, whereas Democrats are quite enthusiastic to talk about it. They want to talk about preexisting conditions. They want to talk about repeal in a way Republicans no longer do. And I think that's what you see with this Senate vote.
Heading into the election, particularly with the Supreme Court battle ahead of us, Democrats are quite, quite eager to make health care a big issue over the next few weeks. And, you know, you see that in the Senate vote. You see that in the first presidential debate, where Joe Biden immediately starts talking about the Affordable Care Act and preexisting conditions when the debate opens. You know, it's an issue Democrats want to talk about in a way that was not true, you know, in the last two election cycles.
DAVIES: It kind of reminds me of - you know, Social Security and Medicare were really controversial when they were passed, but at some point, they become, you know, just a part of the infrastructure and accepted and embraced by just about everybody.
KLIFF: Yeah, I think you're right. This is kind of what we see with social welfare programs. I will say, for Medicare, Medicaid, Social Security - they did not face quite the blowback that the Affordable Care Act did. You know, they were accepted a bit quicker than what we're seeing with the Affordable Care Act, which, you know, as we've already discussed, is still facing a lawsuit in the Supreme Court to overturn it.
But in general, you know, it becomes a lot harder to repeal this, and you saw this in the 2017 repeal effort. It's so much harder to repeal a law that covers millions of Americans than it is to - you know, trying to stop it while it's being drafted. This is a really tangible benefit to a number of people. And it would be quite noticeable to them if that benefit were taken away.
DAVIES: Yeah, it's interesting that while, you know, national Republicans in an election year are not talking about this stuff much, I mean, there are 20 Republican attorneys general who are generally elected - right? - they're politicians - and they were prepared to go to court and try and knock Obamacare out. Is there an incentive among their supporters or donors here? I mean, does it - is it a matter of some of these taxes? Or - why does it still get energy?
KLIFF: You know, that is something that continues to puzzle me to this day is why pursue this challenge? You know, it seems like - I am not a political strategist. But just, you know, from writing about the issue, it seems like a big liability to have this case on preexisting conditions coming just days after the election. I will say one thing that's a bit different about this challenge than previous challenges is it's not generally supported by a lot of the mainstream conservative legal community. This kind of came up more from the fringe and then proved quite successful in lower district courts.
But, you know, at the same time, like you said, there's 20 attorney generals who signed onto it. So it's not like this is totally out of left field. It's getting some support from kind of the - from very important figures within the party. And I don't fully understand the political calculation around it, why you would want to be pursuing this kind of Supreme Court case in an election year.
DAVIES: One other issue, you know, the president says he's done an awful lot to fight high prescription drug costs. Has he?
KLIFF: You know, this is another one where we kind of see a lot of talk about it. And we saw an executive order last week that's signed at the same time as the executive order around preexisting conditions. But we actually haven't seen much policy movement on the topic. President Trump, you know, does like to claim drug prices are lower. He said at the last presidential debate that insulin is now as cheap as water, which any diabetic would tell you is not true. Insulin is much more expensive than water, much more expensive in the United States than other countries.
But - so we haven't really seen much movement. It's clearly an area of focus for the president. He talks about it a lot. And when you ask Americans about, you know, what sort of health care issues they're dealing with, drug prices often comes up as the kind of most frustrating - medical bills they're receiving. But we actually haven't seen much policy movement that would lower those drug prices.
DAVIES: Right. There were some negotiations with the pharmaceutical industry which didn't yield an agreement, right? And then the president talked about issuing $200 voucher or cards to older Americans - right? - soon, this fall.
KLIFF: Yeah. So we're still waiting to see what is going to happen with those cards, if they actually exist or not. There are certainly some questions about the legality of sending out $200 vouchers to a number of voters in the weeks leading up to an election. They claim they have authority under certain waiver rules that allow them to test out new programs.
But I think, you know, if they do actually move forward on sending those out, you might see them challenged in court. So we don't know what's going on with those vouchers. They were mentioned a few weeks ago. But, you know, in the past week or so, we have not heard anything about them. Obviously, there's been a lot going on with the president in the past week or so that might overshadow that.
DAVIES: Right, right. Let me take a break here. I want to reintroduce you again here. Sarah Kliff is an investigative reporter for The New York Times covering the American health care system. We will continue our conversation after this short break. This is FRESH AIR.
(SOUNDBITE OF NOAM WIESENBERG'S "DAVKA")
DAVIES: This is FRESH AIR, and we're speaking with Sarah Kliff. She's an investigative reporter for The New York Times. She's been covering national health care policy for more than 10 years.
You're kind of obsessed with medical costs and charges.
KLIFF: (Laughter).
DAVIES: You love to collect data on this. And, you know, there are federal laws that govern costs for COVID-19 tests. And many insurance companies have told their subscribers that, you know, there will be no co-pays. Have you found that to be the truth, that the case?
KLIFF: Yeah. You know, in most situations, it is. But there's also a lot of people who are facing surprise medical bills due to their coronavirus testing and treatment. We've worked with some data companies. And we estimate that about 2.4% of Americans face some kind of charge that they have to pay for their coronavirus test, despite the requirement that insurance companies fully cover them. And, you know, that number might seem small. But keep in mind, there's been 108 million coronavirus tests in the United States. So when you start doing the numbers, 2.4% of that is actually millions of Americans facing some kind of bill for coronavirus tests. You know, I'm just starting to get further into understanding the costs of coronavirus treatment. And, again, they're - you're starting to see patients who are getting bills they didn't expect for, you know, treatment that they thought was going to be covered by their insurance company.
DAVIES: Right. And sometimes going to get a test, you can also be charged for a doctor's visit. I mean, what kinds of bills are you seeing among those who get them?
KLIFF: Yeah. So you definitely see - one of the things, I think, that's pretty common in these surprise bills is a situation you mentioned where someone goes to a doctor's office or an emergency room for a coronavirus test, and the coronavirus test is covered by the insurance company, but something else that happened is not covered. Sometimes, that's an emergency room facility fee, kind of the price of going to an emergency room, which I've seen emergency rooms applying to drive-through sites. People don't actually enter the emergency room, but they still receive the facility fee for driving through and getting their tests there.
I've seen a number of providers tacking on flu tests or, in some even more egregious examples, STD tests that patients, you know, they just thought they were getting a drive-through coronavirus test. And now, they see a dozen or so different items from the lab that they were billed for, some of them the insurance is not required to cover. So it just - it's really hard to know. And patients typically only find out, you know, what was tacked onto their bill when they get the charges in the mail.
DAVIES: You know, health care treatment is very private. And health insurance companies aren't exactly dying to share data about this. How do you find out what people are paying for these bills?
KLIFF: So I find out by asking readers to send me their bills. It sounds like a kind of insane way to investigate this. But, you know, I found, with some previous work I did on emergency room billing, that the best way to understand what patients are being charged is to actually see the billing documents themselves. Insurance companies and hospitals typically keep those numbers secret. They do not want to share them. They do not publish some list of their charges. So I get my information from what patients are willing to send me and, in this case, what they're willing to send me for their coronavirus testing and treatment bills.
DAVIES: So if somebody wants to send you their bills, what do they do?
KLIFF: They just go to a very simple URL - nytimes.com/costofcare. There's a really easy way just to upload a picture or a PDF or whatever you have - a screenshot of your bill. And it would be such a huge help to the work I'm doing trying to understand the costs of this disease.
DAVIES: So what are you going to be focusing on the next few months?
KLIFF: Well, you know, I think - like a lot of my colleagues - I'm focused a little bit on the election and what are going to be the consequences for health care, you know, depending on who wins. We'll have the Supreme Court case we talked about coming up on November 10, and an eventual decision on that is going to be a pretty big deal. And then the other thing is, you know, understanding the billing experience that patients are having due to coronavirus. I'm trying to understand - I know a lot about testing now, but I know less about treatment, and I'd like to understand that better.
And then I think - you know, big-picture, zooming out a little bit - you know, one of the things we haven't talked as much about lately is that the health care system lost a lot of money due to coronavirus, due to all that canceled and delayed care. And how does it react to that? Do we see hospital closures? Do we see new fees being tacked on to doctor visits? I'm pretty interested in how the health care system deals with this reality of losing a lot of money in 2020.
DAVIES: Yeah. You know, you've written about how many preventative tests just aren't happening. And I'm wondering, are we going to see an increase in - I don't know - measles, undetected breast cancer or colon cancer or prostate cancer?
KLIFF: Yeah, it's hard to know. And I think it's going to take, you know, a few years to really understand the consequences of all this missed preventative care. I think we're going to learn a lot about how necessary or unnecessary that care is based on what happens in this experience. And that is one of the things I do think a number of primary care experts worry about - is that all this skipped care might lead to more breast cancer deaths, more colon cancer deaths. But these are kind of the ripple effects we're going to have to wait months or even years to fully understand.
DAVIES: I'm wondering if - kind of what macro impacts you might be seeing in the health care system from the pandemic - I mean, rural health care being degraded as opposed to urban health care; you know, some hospitals making it, others not.
KLIFF: Yeah. I think, generally, what you see is that the hospitals that were well-positioned and quite wealthy before the coronavirus pandemic are having an OK time weathering the storm. They had reserves and could survive something like this, whereas those that were, you know, already running tight margins, running a loss - and when I think of those, I think of rural hospitals, hospitals serving urban, low-income populations - those are the ones that, you know, you worry about having to close or having to cut off certain service lines that cost them more money to run.
And the one area I worry about the most is, really, primary care because you've seen their revenue just decimated as Americans put off a lot of the preventive care that is, you know, typically delivered at their doctor's office. They were already, you know, some of the less-profitable, lower-margin type of doctor offices we have in the United States, and now with this big hit to their business, I am concerned about the strength of that part of our health care system.
DAVIES: Again, Sarah Kliff, if people want to send copies of their medical bills to you for your research, how do they do that?
KLIFF: They just go to nytimes.com/costofcare. And there's a really simple form to fill out where they can do that.
DAVIES: Well, Sarah Kliff, thank you so much for speaking with us again.
KLIFF: Yeah, thank you so much for having me.
DAVIES: Sarah Kliff is an investigative reporter for The New York Times covering the American health care system. Coming up, jazz critic Kevin Whitehead reviews an album from a trio of road musicians who came together to record something special. This is FRESH AIR.
(SOUNDBITE OF CHARLES MINGUS' "SELF-PORTRAIT IN THREE COLOURS")
Copyright © 2020 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.


npr--2020-10-08--In Rare Step, Esteemed Medical Journal Urges Voters To Oust Trump

The Trump administration has `` taken a crisis and turned it into a tragedy '' in its response to the COVID-19 pandemic , The New England Journal of Medicine says in a scathing editorial that essentially calls on American voters to throw the president out of office .
It is the first time the prestigious medical journal has taken a stance on a U.S. presidential election since it was founded in 1812 .
`` When it comes to the response to the largest public health crisis of our time , our current political leaders have demonstrated that they are dangerously @ @ @ @ @ @ @ by nearly three dozen of the journal 's editors .
`` We should not abet them and enable the deaths of thousands more Americans by allowing them to keep their jobs . ''
The editors accuse Trump 's government of a massive public health failure — and of worsening the pandemic 's effects by prioritizing politics over sound medical guidance .
The piece , titled `` Dying in a Leadership Vacuum '' and published Wednesday , does not mention President Trump or his Democratic rival , Joe Biden , by name .
But @ @ @ @ @ @ @ , and its footnotes cite news articles about Trump insisting that coronavirus risks are overblown , pressuring federal scientists , and politicizing the search for treatments .
`` Instead of relying on expertise , the administration has turned to uninformed 'opinion leaders ' and charlatans who obscure the truth and facilitate the promulgation of outright lies , '' the editorial states .
The New England Journal of Medicine is at least the third widely respected medical or science journal to call for a change in U.S. leadership .
Editor-in-Chief Dr. Eric Rubin says @ @ @ @ @ @ @ reasons : It 's one of the handful of times an editorial has been signed by all the editors , and it takes an unprecedented political stand .
`` There have been many mistakes made that were not only foolish but reckless , '' Rubin tells CNN , `` and I think we want people to realize that there are truths here , not just opinions . ''
Even though the U.S. has distinct advantages in biomedical research , manufacturing capacity and public health expertise compared with many other countries , the U.S. @ @ @ @ @ @ @ the coronavirus — the most in the world .
Along the way , U.S. leaders have denigrated experts and ceded disease control to the states , the journal 's editors say .
`` Anyone else who recklessly squandered lives and money in this way would be suffering legal consequences , '' the editorial states .
`` Our leaders have largely claimed immunity for their actions .
But this election gives us the power to render judgment . ''
The editorial acknowledges the difficulties that all countries face in coping with the coronavirus .
@ @ @ @ @ @ @ unavoidable in a pandemic .
But in the U.S. , the authors say , `` we have failed at almost every step , '' from having adequate protective gear to a problematic approach to testing and contact tracing to a failure to follow basic precautions such as wearing face masks .
`` In much of the country , people simply do n't wear masks , largely because our leaders have stated outright that masks are political tools rather than effective infection control measures , '' the editorial states .
Many of the sentiments @ @ @ @ @ @ @ this year .
Scientific American broke with 175 years of tradition by endorsing Biden last month – a decision that was both unanimous and quick , Editor-in-Chief Laura Helmuth told NPR .
And The Lancet called on Americans to make Trump a one-term president back in May .
All three journals took stands against Trump without referring to political parties ; Helmuth says the Scientific American editorial purposefully avoided doing so in an attempt to be inclusive for its readers .
In a similar vein , the New England Journal of Medicine editorial @ @ @ @ @ @ @ nor conservative . ''
The opinion piece notes that the U.S. has performed worse than many other developed nations , such as South Korea that had much higher rates of travel to and from China when the coronavirus initially emerged .
The journal 's editors write : `` The death rate in this country is more than double that of Canada , exceeds that of Japan , a country with a vulnerable and elderly population , by a factor of almost 50 , and even dwarfs the rates in lower-middle-income countries , such @ @ @ @ @ @ @ almost 2000 . ''

In Rare Step, Esteemed Medical Journal Urges Voters To Oust Trump
Enlarge this image toggle caption Michael Dwyer/AP Michael Dwyer/AP
The Trump administration has "taken a crisis and turned it into a tragedy" in its response to the COVID-19 pandemic, The New England Journal of Medicine says in a scathing editorial that essentially calls on American voters to throw the president out of office.
It is the first time the prestigious medical journal has taken a stance on a U.S. presidential election since it was founded in 1812.
"When it comes to the response to the largest public health crisis of our time, our current political leaders have demonstrated that they are dangerously incompetent," reads the editorial signed by nearly three dozen of the journal's editors. "We should not abet them and enable the deaths of thousands more Americans by allowing them to keep their jobs."
The editors accuse Trump's government of a massive public health failure — and of worsening the pandemic's effects by prioritizing politics over sound medical guidance.
The piece, titled "Dying in a Leadership Vacuum" and published Wednesday, does not mention President Trump or his Democratic rival, Joe Biden, by name. But it refers to the Trump administration repeatedly, and its footnotes cite news articles about Trump insisting that coronavirus risks are overblown, pressuring federal scientists, and politicizing the search for treatments.
"Instead of relying on expertise, the administration has turned to uninformed 'opinion leaders' and charlatans who obscure the truth and facilitate the promulgation of outright lies," the editorial states.
The New England Journal of Medicine is at least the third widely respected medical or science journal to call for a change in U.S. leadership. Editor-in-Chief Dr. Eric Rubin says the editorial is rare for two main reasons: It's one of the handful of times an editorial has been signed by all the editors, and it takes an unprecedented political stand.
"There have been many mistakes made that were not only foolish but reckless," Rubin tells CNN, "and I think we want people to realize that there are truths here, not just opinions."
Even though the U.S. has distinct advantages in biomedical research, manufacturing capacity and public health expertise compared with many other countries, the U.S. has recorded more than 212,000 deaths from the coronavirus — the most in the world. Along the way, U.S. leaders have denigrated experts and ceded disease control to the states, the journal's editors say.
"Anyone else who recklessly squandered lives and money in this way would be suffering legal consequences," the editorial states. "Our leaders have largely claimed immunity for their actions. But this election gives us the power to render judgment."
The editorial acknowledges the difficulties that all countries face in coping with the coronavirus. And it notes that some deaths are unavoidable in a pandemic. But in the U.S., the authors say, "we have failed at almost every step," from having adequate protective gear to a problematic approach to testing and contact tracing to a failure to follow basic precautions such as wearing face masks.
"In much of the country, people simply don't wear masks, largely because our leaders have stated outright that masks are political tools rather than effective infection control measures," the editorial states.
Many of the sentiments echo concerns raised in other venerable journals this year.
Scientific American broke with 175 years of tradition by endorsing Biden last month – a decision that was both unanimous and quick, Editor-in-Chief Laura Helmuth told NPR. And The Lancet called on Americans to make Trump a one-term president back in May.
All three journals took stands against Trump without referring to political parties; Helmuth says the Scientific American editorial purposefully avoided doing so in an attempt to be inclusive for its readers.
In a similar vein, the New England Journal of Medicine editorial states, "Truth is neither liberal nor conservative."
The opinion piece notes that the U.S. has performed worse than many other developed nations, such as South Korea that had much higher rates of travel to and from China when the coronavirus initially emerged.
The journal's editors write: "The death rate in this country is more than double that of Canada, exceeds that of Japan, a country with a vulnerable and elderly population, by a factor of almost 50, and even dwarfs the rates in lower-middle-income countries, such as Vietnam, by a factor of almost 2000."