November 16, 2024
1) Article from State of Politics re: NYS budget issues given recent elections
2) The Impact Of The Election On Health Policy And The Courts
November 14, 2024
And with Republicans flipping the U.S. Senate by a comfortable margin, President-elect Trump will also be able to easily confirm federal judges in the conservative mold of those he appointed during his first term in office. Republicans will maintain a slim majority in the U.S House of Representatives, providing them with unified control of the federal government, but the limitations of reconciliation rules as well as political constraints could limit the scope of health care legislative measures. Appointments and other unplanned vacancies (multiple House Republicans have already been linked to cabinet-level or senior Administration roles) could further complicate the legislative agenda.
This article provides a deeper dive into how the election and new political landscape will affect several key health care programs and access to health care services more broadly. In light of the courts increasingly having the final say on health care policy fights, we also discuss how the composition of the judicial branch going forward will shape future disputes.
Affordable Care Act
The composition and implementation of the Affordable Care Act (ACA) will be affected significantly by the election. Under the Biden Administration, the ACA marketplaces have been thriving. Enrollment is at record levels (over 21 million) and the uninsured rate is at an all-time low.
However, such record enrollment was only made possible by the enhancements to the premium tax credit under the American Rescue Plan and subsequent extension by the Inflation Reduction Act. Allowing these premium tax credit enhancements to expire entirely after 2025 could cause millions to lose their health coverage. Congressional Republicans have long criticized such premium tax credit enhancements as wasteful and are unlikely to support a clean extension (even while many Marketplace enrollees benefitting from this policy reside in their districts).
More broadly, Trump and Congressional Republicans could pursue another effort to repeal the ACA entirely or otherwise weaken ACA consumer protections, like those banning discrimination based on pre-existing conditions. President-elect Trump supported a failed Republican effort to repeal the ACA in his first term in office. He now claims to disavow the support for repeal advanced by Project 2025 or other conservative allies. Yet the current (and likely future) Speaker of the House recently criticized the ACA and called for health care reform to be a big part of an initial Republican agenda.
Even if Trump and congressional Republicans do not advance legislative reforms, they may pick up where they left off on the regulatory front, either increasing consumer choice or weakening consumer protections (depending on one’s viewpoint); cutting outreach and enrollment funding; providing more state flexibility; and promoting enrollment in short-term limited duration plans or other plans that don’t cover comprehensive benefits. Such measures will likely face new legal obstacles, however, in light of the Supreme Court’s Loper Bright decision overruling the Chevron doctrine and allowing judges more leeway to overturn certain agency actions (especially where agencies are flipping back-and-forth between interpretations). The Trump Administration will likely also look to roll back regulatory efforts to expand access to health coverage for DACA recipients, currently under legal threat also.
Medicaid
While the Trump campaign loudly proclaimed that Trump would protect against any cuts to Medicare and Social Security, experts noted that Medicaid was conspicuously absent from the conversation. Medicaid is jointly financed by the federal government and the states, providing comprehensive coverage of health care and long-term services and supports to about 80 million low-income people in the U.S. Through the ACA, Medicaid was expanded to cover nearly all nonelderly adults with income up to 138 percent of the Federal Poverty Level (though this expansion was made optional for states by the Supreme Court).
Significantly restructuring Medicaid—rolling back Medicaid expansion or even broader block grants or per-capita caps—could be a high priority for Trump and congressional Republicans looking to find cost savings and provide enhanced flexibility to state governments. This could dramatically increase the number of uninsured Americans and create other budget pressures on states that want to maintain Medicaid coverage for their low-income populations.
If such Medicaid changes are not achievable through the legislative process given narrow Republican majorities, the Trump Administration may pursue other regulatory efforts, such as new waivers or imposing work requirements that otherwise would shift more health care costs to Medicaid beneficiaries or otherwise lead to reduced coverage. When the Trump Administration tried to put work requirements in place through waiver approvals during their first term, many of these approvals were blocked by courts, but ultimately the Supreme Court did not weigh in on the matter. It remains to be seen how Loper Bright could affect this calculus, but aggressive waivers are unlikely to receive as much judicial deference as they did previously.
Reproductive Health Care
During his campaign, Donald Trump boasted about appointing three justices to the Supreme Court who helped overturn the right to abortion in Dobbs v. Jackson Women’s Health Organization in 2022. Following Dobbs, many states across the country passed laws to restrict access to abortion.
The Biden Administration responded to protect access to mifepristone (used in medication abortions), emergency abortions, contraception coverage, privacy protections under HIPAA, and nondiscrimination protections for LQBTQ patients by issuing guidance and regulations and defending these actions in federal court. When issues about federal approval of mifepristone and federal protections for emergency abortion reached the Supreme Court in its October 2023 term, the Court punted on addressing the merits, instead dismissing both cases on procedural grounds—presumably waiting for the presidential election results before issuing new precedent.
Though the Trump campaign expressed opposition to putting in place a federal abortion ban, President Trump’s actions in his previous term demonstrate a willingness to limit access to reproductive health care. As noted earlier, the Supreme Court’s overturning Dobbs was only possible due to the Supreme Court justices named by Trump. The Trump Administration also issued a “domestic gag rule” that prohibited family planning clinics receiving Title X funding from providing abortion referrals, effectively jeopardizing the capacity of such clinics to serve patients seeking contraception and other reproductive health care services. And the Trump Administration sought to make it harder for women in ACA Marketplace plans to obtain coverage for abortion care.
This term, President Trump could roll back the Biden Administration’s regulations on contraceptive coverage and the HIPAA privacy rules for reproductive care. Similarly, the Trump Administration is likely to pull down the Biden-era guidance explaining that Medicare-funded hospitals must provide abortion care to pregnant patients with emergency conditions under the Emergency Medical Treatment and Labor Act. This would remove emergency protections for pregnant patients in states with abortion bans that have few or vague medical exceptions.
In addition, the Trump Administration could seek to revive the Comstock Act, a 150-year-old, now dormant anti-obscenity law prohibiting the mailing of pornography and abortion-related materials. The Food and Drug Administration could also modify or reverse its approvals of mifepristone and misoprostol. Such actions would significantly curtail access to medication abortion across the country and would likely trigger new legal fights.
There are ongoing lawsuits over many of these issues. For example, Texas has challenged the EMTALA guidance and the HIPAA reproductive privacy rules, and Missouri, Kansas and Idaho have filed an amended complaint to keep the challenge to FDA’s approval of mifepristone going. While the Biden Administration actively defended access to reproductive health care in these lawsuits, the Trump Administration is likely to unwind certain policies and switch positions in many of these cases.
Nondiscrimination And Health Equity
The Biden administration made advancing health equity central to its agenda. When he assumed office, President Biden issued an executive order (EO) to “advance[e] racial equity and support for underserved communities through the federal government.” In accordance with the EO, various federal agencies, including HHS, adopted various measures to advance health equity and close gaps in health. For example, HHS issued a regulation that incentivized health care providers by giving them the option to qualify for enhanced Medicare payments by implementing anti-racism plans. This regulation is currently being challenged in court, and the Biden administration is defending it.
This approach is starkly different from the Trump administration, which characterized such efforts to address health equity and advance anti-racism as “divisive concepts” that reinforced racial stereotypes rather than ameliorating them. Given the approach that the previous Trump administration took regarding health equity, the new Trump administration is very likely to roll back those efforts. Indeed, Trump’s Director of Office of Management and Budget, Russell Vought, is one of the chief architects of Project 2025, which calls for “reversing the Diversity, Equity and Inclusion Revolution.” The new Trump administration is also unlikely to continue defending these policies—including HHS’s anti-racism plan regulation—in the courts.
Anti-discrimination protections in health are also likely to suffer major blows going forward. Health care is a civil rights issue. The ACA incorporates various civil rights protections across health care systems. Accordingly, earlier this spring, HHS finalized a rule clarifying that these protections apply to a broad range of health activities and programs, including publicly funded health care, ACA Marketplaces, hospitals, providers, pharmacies, and so forth. The rule also adopts more robust protections for LGBTQI+ people from discrimination in health programs and activities. It defines sex-based discrimination to include gender identity and sexual orientation.
This interpretation departs from the Trump administration’s, which defined sex-based administration based on the gender binary and narrowed the health programs to which the protections applied. The Biden administration’s enhanced protections have already been hampered by litigation, and the Trump administration will probably not continue defending them in the courts. Similarly, because the Trump administration previously adopted a narrower interpretation of the ACA’s civil rights protections, it is likely that the new administration will rescind the enhanced protections.
Medicare Drug Negotiation Program
The Medicare drug price negotiation program, enacted under the Inflation Reduction Act (IRA), was the signature health reform achievement under the Biden Administration. After months of negotiating, the Biden Administration concluded negotiations with drug manufacturers and publicly announced prices for ten of the most expensive and frequently dispensed drugs under the Medicare program. Such negotiated prices are slated to take effect in 2026 and are expected to save billions for taxpayers and seniors. The pharmaceutical industry has argued that the process set forth in the IRA amounted to price controls that will harm innovation; the industry has brought several lawsuits across the country, pursuing a wide array of constitutional and statutory claims to try and block the implementation of the negotiation program. Such lawsuits and appeals are ongoing, though industry has failed in their efforts to date to thwart the program through the courts.
The Trump Administration and Congressional Republicans face a number of key decisions related to the negotiation program. While some Republicans have called for a full sale repeal of the IRA and the drug negotiation provisions, the legislative path forward appears cloudy in light of the program’s popularity and the budgetary savings it is projected to generate.
If there is no legislative reform, President Trump may try to delay the implementation of the program or otherwise take measures that are more conciliatory to the pharmaceutical industry, though such steps could face their own legal challenges. We will also have to see what posture the Administration takes in defending the negotiation program in court with respect to the multiple ongoing cases and appeals. Traditionally, the Department of Justice defends laws enacted by Congress regardless of policy differences but, as we saw with respect to the ACA during the previous Trump term, that is not always the case.
Public Health
Coming off the height of the pandemic, the public health landscape remains precarious, even more so in light of President-elect Trump’s apparent commitment to elevate Robert F. Kennedy Jr. (RFK) and his allies into leading government roles in a new Administration.
The scope of what a Trump Administration could do in this area remains somewhat uncertain, given that a range of public health authorities that remain primarily at the state and local levels. But RFK has expressed support for rolling back support for certain vaccines or otherwise casting aspersions on their efficacy, opinions that could have major impacts if adopted by health agencies such as the Food and Drug Administration and the Centers for Disease Control and Prevention, or by advisory committees on health policy. Thus, the Administration could significantly upend the existing public health infrastructure. Certain regulatory actions would likely face legal challenges from industry, patient, and provider groups. But even absent meaningful regulatory actions, the Trump Administration could seed further doubts within certain communities about the efficacy of vaccines and jeopardize uptake for children.
The Courts
Hanging over all these regulatory and legislative battles are the courts, which may have the last say on all of these fronts. During his first term, President Trump and Senate Republicans prioritized the confirmation of appointments to the Supreme Court, appellate courts, and district courts. The Biden Administration also made strides the past few years in confirming federal judges, putting a premium on diversity. Nevertheless, a number of appellate courts remain closely divided, and the next few years could see the Trump Administration successfully edge certain courts toward becoming more conservative in how they approach matters of federal power, agency authority, and reproductive rights. It is also likely that some conservative Supreme Court Justices will step down in 2025 or 2026 to ensure their (likely younger) replacements are of a similar ideological profile.
Conclusion
A focus on health care access and affordability will remain front and center in the new political landscape following the recent elections. Of course, this article is just an examination of select issues we anticipate the new Administration to focus on, but it is not all inclusive. Issues related to matters such as Medicare Advantage, long-term care, and antitrust enforcement, to name a few, could also see significant policy shifts in the coming months and years.
At the end of the day, the Trump Administration and Congressional Republicans will need to set priorities among these complex health policy decisions, then determine what requires legislation and what can be accomplished through regulation or other agency action. Congressional rules limiting what sort of legislation can pass using the complicated budgetary reconciliation rules— which allow passage via a simple Senate majority, rather than the 60 votes normally required to overcome now virtually ubiquitous filibuster threats—could also block the ability of the Trump Administration and Republicans to secure legislative wins even if they can hold together their narrow majorities. The Trump Administration may also pursue policy changes by refusing to defend certain statutory provisions or programs in court, including with respect to the ACA’s preventive services provision that requires insurers and employers to cover a broad array of preventive services without cost-sharing.
It is safe to say that litigation by Democratic state attorneys general, patient and consumer groups, and other advocacy organizations should be expected on any high profile regulatory initiative that the Trump Administration pursues that will affect health care access and affordability. In light of potentially novel issues related to agency authority, spending and grant restrictions, and the balance between state and federal power, some of these disputes may ultimately be decided by the Supreme Court.