Why the Midterm Elections Matter for Health Care

SHANOOR SEERVAI: The midterm elections are now just weeks away and, once again, health care is a major player. Every seat in the House of Representatives is up for election in November, and one-third of the Senate seats face a contest. That means access to health care and reproductive care could shift dramatically in many states.

I’m Shanoor Seervai, and today on The Dose we’ll discuss why these midterm elections are so important and unpredictable for the future of health care. My guest, Katie Keith, is the director of the Health Policy and the Law Initiative at the O’Neill Institute at Georgetown University Law Center. She’s also a contributing editor for Health Affairs, where she provides timely analysis on the Affordable Care Act.

Katie, thanks so much for joining me today.

KATIE KEITH: So excited to be here. Thank you.

SHANOOR SEERVAI: We’re going to talk about federal policy issues and politics and also all of that at the state level. So let’s start now with a broad snapshot. Where is health care reform and legislation right now, after the Inflation Reduction Act became law?

KATIE KEITH: Yeah, Democrats have ticked off a couple of pretty big, in some ways, very historic items, including allowing Medicare to negotiate prescription drug prices. This is something that’s been on the agenda for decades for Democrats, and they sort of just got it done. There’s also a lot of stuff left on the cutting-room floor from that policy. So I think if we were going to look ahead, things like closing the Medicaid coverage gap or making additional Affordable Care Act improvements, that’s all something that I think hangs in the balance with the November election. So big gains, but a little bit of uncertainty now about the future.

SHANOOR SEERVAI: And is there momentum after the Democrats have ticked off their big-ticket items to circle back to some of the things that have been left out of the Inflation Reduction Act?

KATIE KEITH: I think so much is going to hinge on what happens in this November election cycle. Who controls the House? Of course, you’ll still have, I think, President Biden in the White House calling for a lot of these policies as he has since he’s been on the campaign trail. I think there could still be things that happened this year, maybe in the lame duck session after the election. But in terms of some of those big-ticket priority items for Democrats, things like Medicaid coverage gap or some additional ACA enhancements, I think we have to wait and see what happens in the election.

SHANOOR SEERVAI: Two issues that seem to be top of mind for voters are inflation and abortion. How do you think it’s going to play out if there’s a sort of collision between the two?

KATIE KEITH: We saw some recent data, like a new poll from Kaiser Family Foundation. I think early predictions were that abortion would not be a big motivator in the election, and I think some of the analysts are reversing that position. And now there has been this uptick. So about half of voters said the Supreme Court’s decision in Dobbs, overturning Roe v. Wade made them more motivated to vote, and that’s up by about 7 percentage points. You’re seeing a pretty significant shift, I think, especially in a midterm year, where people are saying, “No, no, I am going to vote in midterm elections. I wasn’t going to before. This is actually very important to me.”

And then they also had information that I think eight in 10 people across both political parties oppose abortion bans in the cases of rape, incest. They oppose criminal penalties on providers and women. They don’t like these bounty-hunter laws that were first started in Texas where you have citizens trying to sue their neighbors over whether they helped someone get an abortion, but really strong support when you ask people and you do the polling, folks don’t like this, You are sort of seeing this uptick in the polls. And folks who are familiar with the ballot initiative effort in Kansas, I think, were very surprised that it was as much of a motivator as it was.

SHANOOR SEERVAI: I want to talk more about Kansas when we talk about the states, but on this question of abortion, one thing that occurs to me is are voters really thinking of abortion as a health care issue or is it talked about as something outside of health care?

KATIE KEITH: Not to go back to the Kansas experience, but I’ve read a fair amount about the messaging that was used there, and I think it’s a spectrum — of women talking about being able to make their own decision all the way to providers and doctors and people in white coats saying, “This is the penalty that I would face if this was it.” And so I don’t think anyone talks about it solely divided from health care. I do think it has been a strategy by those who oppose abortion rights to sort of separate the two. One interesting tidbit is in the wake of the Affordable Care Act, there were several constitutional amendments at the state level affirming the right to health care that you choose. And we’re actually seeing some of that language that came from the Affordable Care Act fight be cited in the litigation over abortion rights in some of these state disputes. And so you are seeing this intersection, very much the sort of right to health care, just like the right to privacy and is very much, I think, coming up in these state-level fights over abortion. So I think it’s the right question.

SHANOOR SEERVAI: Well, let’s follow the discussion at the state level then. So starting this part of the conversation at the top, there are 36 governors’ races coming up in November, and how are those going to impact the health care landscape?

KATIE KEITH: I mean, I think governors play a tremendous role. States period, as your listeners know, play a huge role on health care, and we’ve already seen that play out even just certainly in the wake of Dobbs where you have everyone from Governor Whitmer of Michigan suing to make sure that that abortion rights are preserved in Michigan is just one example. But governors can veto the legislation that they disagree with that’s coming before them. We’ve also seen governors really use the power of the pen and executive authority in areas from certainly Affordable Care Act implementation, Medicaid expansion, Louisiana and Pennsylvania are examples and Ohio where the governor pushed through Medicaid expansion on their own and didn’t wait for the legislature. I and many others are very closely watching elections in Georgia, Kansas, Michigan, Nevada, Pennsylvania, Wisconsin, and Arizona. I think those are some of the more competitive races, but high-population states, on the forefront of a lot of the battles that I think on health care are arising. They are the ones that are the most competitive, where there’s a potential that control of the governor’s mansion could flip.

SHANOOR SEERVAI: And Kansas has come up a few times, so let’s talk about what happened in Kansas. It was the first state that let voters directly weigh in on abortion, and they indicated their support for maintaining access in this state. So what does this referendum in Kansas tell us or not tell us when we’re looking to November?

KATIE KEITH: I would say I think the voters in Kansas resoundingly rejected this ballot measure in a way that I think was a surprise to the proponents of the ballot initiative, if I understand correctly. I think seeing the experience in Kansas, and then hearing some of the polling data that we already talked about, it could be a significant turnout motivator for some of these races. It’s worth noting there are five other abortion-related ballot initiatives in states across the country. Some of those are to protect, sort of enshrine, a constitutional right to abortion in those state constitutions. So you’re seeing that in California, Michigan, and Vermont. Kentucky voters there will consider a sort of antichoice ballot initiative, which sounds very complicated. They have an existing law, but they want to put it in the constitution, and that’s what the voters will be asked about in Kentucky. And then Montana as well. It’s not a constitutional issue, but there’s an abortion-related law that’s being put to the voters.

So it’s going to be really interesting to see how the dynamics are the same or different in the other five states in November and what that means for those elections too. Also worth noting, South Dakota has a ballot initiative on Medicaid expansion this year. It is far from the first time that we’ve seen ballot initiatives be used on health care issues. Other states have done this too, and it has been explored as a way to kind of try to fill the Medicaid coverage gap in as many states as possible. But I think we are . . . My understanding of where you can use state ballot initiatives, we are quickly coming to the end of that list. So it has been a very successful strategy. Any state where this has been put to the voters, they have overwhelmingly voted in favor of Medicaid expansion, but not every state allows it. And so there’s going to be . . . There will inevitably be left with some big states where this is not an option to take it to voters. But again, South Dakota, another one to watch there.

SHANOOR SEERVAI: Right. I did have one more question about a state-level issue. The last episode we did on The Dose was about care for trans youth, particularly in the South, and ways in which policymakers have been attacking and limiting that. Do you think that gender-affirming care and care for transgender people is going to play out in the November election?

KATIE KEITH: I think so. Just having seen the way these issues have been so politicized, and I, especially when you think about what we’ve seen in just the past year or past two years in terms of legislation against transgender young people, really targeting children and families in a way that I do think is political and that’s likely to continue. I mean, something that we maybe haven’t touched on, but I think is another thing for listeners to think about, is all this state legislative, we’ve talked about Congress being up, but a lot of state legislatures will be up for election in November as well. And so we could have dramatically different-looking state legislatures in a lot of these states. And so one question is, are those state legislatures getting more conservative or less? And so keeping an eye on those races because I think if they get . . . If some states get even more conservative than they are now, anticipating, sort of this, I think for trans youth, both on health care and sports and a whole range of issues, probably a continuing onslaught of legislation.

And then I’m pretty interested to see what happens with some of the abortion restrictions that get taken up next year. And we’re sort in this time period, from my perspective, where you have the Dobbs decision and that sort of with the overturning of Roe v. Wade, it triggered a lot of state laws, many of them very, very old to go back into effect. And so a lot of the fights we’ve been seeing in the courts and elsewhere is over this really old statutory language and sort of folks going, “I don’t know what this means.” And it’s pretty vague. It’s not very precise. Some of that might be on purpose, but it’s really old. We’ve only seen, I think, one or two states at this point adopt new legislation. And so I think by the time we get to January or we get to prefiled bills in the fall, a lot more states are going to update, I suppose would be the right word, or enact new legislation and new perhaps more specific abortion restrictions, but it could be much more draconian.

SHANOOR SEERVAI: I want to shift gears a little bit and draw on your expertise around the ACA. So looking at where we are right now, the number of people in the U.S. without health insurance is at a historic low, but there are still significant gaps and universal coverage is still a distant and elusive goal. What are the greatest areas of concern and potential for coverage gains coming out of the 2022 midterms?

KATIE KEITH: I think you have the Affordable Care Act itself on the strongest footing that it’s ever been on. Record high marketplace enrollment, enhanced marketplace subsidies that I think are very much kind of the unfinished business of the original Affordable Care Act. You had Congress in the American Rescue Plan Act come in and make the subsidies, what I think Democrats in Congress in 2010 always wanted them to be. And then with the Inflation Reduction Act you had that extended through at least 2025. So subsidies . . . A Biden administration who sees the Affordable Care Act as a tool and is using that as a tool in the toolbox and flexing its muscle and getting as many people in as possible. And you’re sort of seeing the gains, really sort of using the Affordable Care Act to get at the uninsured rate that you’re talking about. So record-high, strongest the law has ever been, from my perspective.

At the same time, you have this kind of looming end of the public health emergency, which is fully within the administration’s control, but there’s a lot of coverage implications tied to that declaration from the Secretary of HHS. And so we’re sort of at this, it feels a little bit to me like a precipice, where we’ve got this record-high enrollment. At the end of the public health emergency, you’re going to start to see Medicaid, state Medicaid programs doing eligibility redeterminations, and the topline number is up to 15 million people could lose coverage as a result, and it’s going to take an all-hands-on-deck approach to help walk them over to the marketplace or their job-based plan or what . . . So you have really record-low uninsured rate, but we’re also waiting for what could be a really big wave of more uninsured people than we’ve had in quite some time.

And so that’s something that I think as we think about policies or what’s going to happen in November 2022, we’re in this kind of world where many of us are watching and waiting, and some states are going to really step up and try to make sure everybody gets to the right place. I think some states are going to speed through and folks are going to get lost in the shuffle, and it’s not going to be a great experience in those places for people.

So, are you going to have a new Congress willing and able to work on some of these issues or are we going to have a bit of a crisis? You’ve got sort of stability on the ACA, and so at least at the minimum you have a soft landing place for a lot of folks coming off of Medicaid. But maybe ideally you’d have a Congress that could help ease that transition further or work with the administration so that everything is in place that needs to be in place, that kind of thing. So when I think about the uninsured rate, it is things like the Medicaid coverage gap. There’s definitely a next generation of policies.

SHANOOR SEERVAI: Yeah. And that’s a challenge I feel because the public — and also as a result of that, our policymakers — are fed up with the pandemic and don’t want to talk COVID and public health emergency anymore. So it might be challenging to protect some of the gains that were made in that time.

KATIE KEITH: I think that’s right. And then the irony being, we haven’t really talked about the pandemic in a conversation about health care and November 2022, which may be is that sort of says enough. The other issue that I sort of think about for November ’22, it links back to inflation. We’re likely to see health care inflation coming in soon. I think premiums are probably set to go up. There’s a little bit of a lag as we see labor costs increase and hospital costs increase. I think at the same time, you have all this data showing the level of underinsurance that folks have with higher out-of-pocket costs. Congress did try to take some of this on through surprise medical bills and the No Surprises Act, but it just underscores that there’s sort of a coverage conversation. And then care itself is still very, very expensive. And that is translating to medical debt. I actually think that’s where a lot more of the conversation is right now is on medical debt, maybe a little bit more on cost containment and then some of these underinsured issues, things like high deductibles, et cetera.

SHANOOR SEERVAI: And the other battle that’s playing out around the ACA is on preventive services. And of course the ACA protects these, but there are legal challenges to that. So can you just give us a brief update on the ongoing litigation and the courts on preventive services?

KATIE KEITH: Sure. So perhaps as listeners know, back in early September of this year a federal district court judge in Texas, Judge Reed O’Connor, most folks know him as the judge who declared the entire Affordable Act invalid. That’s the case that went up to the Supreme Court last year in 2022. His conclusions were rejected by the Supreme Court seven to two, but we’re still here. So the Preventive Services Requirement under the Affordable Care Act that you’re asking about, this is not a challenge to the entire law like that one was, but it is a challenge to this Preventive Services Requirement, which I think is one of the most well recognized and most popular provisions of the law. It applies really broadly to pretty much every type of commercial plan, almost every type of commercial plan. So a lot of people benefit from this. I think more than 150 million Americans benefited from this provision in 2020 alone.

It’s also been in effect for a very long time. It was one of the few ACA provisions that went into effect in 2010, the year that the law was enacted. So we’ve had these services covered for 12 years at this point. And there has been a lot of litigation over one part, historically over one part of the Preventive Services Mandate, that’s the contraceptive mandate. That is one component of the broader requirement. This though, this is a challenge to the whole thing. And so contraceptive mandate included, but the whole thing. Historically, we’ve seen a lot of litigation over the regulations, the rules to implement the statute. And here the plaintiffs are going straight to the statute, to the law itself to say, “We think this is unconstitutional.” And so what Judge O’Connor said in early September was he agreed in part. So the way the Preventive Services Requirement works, you have sort of expert, evidence-based organizations who make recommendations about which services have the strongest evidence, and then insurance companies and employers have to cover those.

And there’s services recommended by the U.S. Preventive Services Task Force that have the highest ratings. There’s women’s and kids’ services recommended by HRSA [the Health Resources and Services Administration]. And then there’s the immunizations recommended by ACIP [the Advisory Committee on Immunization Practices]. Anyway, there’s sort of those three entities that make these recommendations. Judge O’Connor found no problem with the immunizations recommendations and with the women’s and kids’ recommendations, but he did find a defect, in his mind, with the recommendations from the U.S. Preventive Services. If we were to lose the recommendations from the Preventive Services Task Force from coverage, it’s more than 50 types of screening, it’s actually the way that the vast majority of these recommended services come in. It’s a big deal. It’s cancer screenings, it’s high blood pressure, it’s preexposure prophylaxis, which is an HIV prevention medication. It’s screening colonoscopy. It’s the bulk of the services come in based on recommendations from that entity. So the fact that the court found a problem with that, it’s not insignificant by any stretch. Correct.

SHANOOR SEERVAI: And so what happens next?

KATIE KEITH: So what happens next is Judge O’Connor sort of said, and I’ve found this to be unusual, he said, “I think this part of the law is unconstitutional.” And he basically asked the plaintiffs and the government to come back, provide him with more information. That process is going to . . . They’ll sort of go back and forth. That will happen till mid-January. And then we will get a decision sometime in early 2023. And so that would be the point where Judge O’Connor would say, “This part of the law is unconstitutional, and I’m making my decision nationwide, or I’m limiting it to only these people, or it’s only in Texas.”

That that’s the part we don’t know yet. So we’re sort of in a little bit of limbo, I would say at this point. There’s more to come. And then from there you would see his decision appealed to the Fifth Circuit Court of Appeals and then potentially the Supreme Court. So it’s a little bit strange. I feel like we have the first half of the decision, but not the second half. And I should say, in the meantime, because we don’t really have the impact of his ruling yet, folks’ coverage should not be disrupted. You should still have coverage of your preventive services without cost sharing. That should be the case for 2023 coverage too, sort of status quo in terms of coverage. But I think it does put the coverage and cost-sharing protections for these core preventive services at risk going forward.

SHANOOR SEERVAI: And before I let you go, if we look ahead at the health care issues that are likely to be stuck or have momentum after the midterms, what are some of the big ones on your mind?

KATIE KEITH: Oh, I think the end of the public health emergency might be coming in 2023. So all the planning and what that means and making sure people understand their rights and can get to the right coverage, that’s going to be just a huge, huge undertaking. I think implementation of the Inflation Reduction Act is going to be . . . I think we’re going to keep talking about Medicare prescription drugs. You know, just because Congress enacted the policy — all these benefits have to be rolled out. HHS has to put out the list of drugs where it’s going to negotiate the price next fall. All these things are going to keep coming. It’s not sort of one-and-done by any stretch.

I think we’re going to continue to be looking to the courts on things like preventive services, but also abortion. We’re going to see, I think, a ton more litigation on abortion in addition to kind of seeing what happens at the polls and in the statehouses and Congress.

I think drug pricing in general is probably going to continue to be motivating, right? There were parts of the Inflation Reduction Act, or initially it was Congress wanted it to apply to more of the commercial market, and that got pared back to Medicare. So I think you’ll still see discussions about how do we bring drug prices down for more people?

SHANOOR SEERVAI: And specifically if we think about women’s health, are there strategies that we think are going to emerge or will accelerate after the midterms?

KATIE KEITH: That’s a great question. What it’s got me thinking about is, for example, there is a rule on the contraceptive mandate that the Biden administration is considering right now. What happens with access to contraception and what happens with the Title 10 family planning program. I think maybe seeing how the dust settles in November of 2022 and having an understanding of where there might be state restrictions. Again, we’ve been kind of in a little bit of limbo also post-Dobbs. I think a lot will get sorted in the next state legislative cycle and with these ballot initiatives that a lot of it will be focused on the courts after that. And then I think it’s how do you create some sort of safety net or some sort of access or bolster things like contraceptives or . . . If those state restrictions are going to be what they are, how do you fight them, but also maybe adapt? How do you sort build in the support that people need to get the health care that they will inevitably need?

SHANOOR SEERVAI: And we’ll try to come to that on a future episode. But it really sounds like there’s a lot on the line here.

KATIE KEITH: Undoubtedly. It’s a really significant election for sure — both state and federal.

SHANOOR SEERVAI: Katie Keith, thank you so much for joining me on The Dose today.

KATIE KEITH: Thanks for having me. Anytime.

SHANOOR SEERVAI: This episode of The Dose was produced by Jody Becker, Mickey Capper, Naomi Leibowitz, and Joshua Tallman. Special thanks to Barry Scholl for editing, Jen Wilson and Rose Wong for our art and design, and Paul Frame for web support. Our theme music is “Arizona Moon” by Blue Dot Sessions. Our website is thedose.show. There you’ll find show notes and other resources. That’s it for The Dose. I’m Shanoor Seervai. Thank you for listening.