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At the time it was enacted in 2010, the Patient Protection and Affordable Care Act (ACA) was widely applauded by health activists, as it meant that the United States would at last join the overwhelming majority of industrialized countries in providing its population with guaranteed access to affordable health care. Roughly half of the increase in access to health insurance was to come from the expansion of Medicaid eligibility to all U.S. citizens and legal residents with income below 138% of the Federal Poverty Level. However, the Supreme Court’s 2012 ruling in National Federation of Independent Business v. Sebelius (NFIB) essentially converted the Medicaid expansion into an option for states, and many (fourteen at the time this article went to press, including states with enormously high rates of uninsured residents, such as Texas) have chosen not to participate. Since NFIB, the Congressional Budget Office has reduced its initial estimate of the number of individuals who were to gain coverage under the ACA, from thirty-two to twenty-nine million. But the accuracy of these estimates is subject to question; given the number of states that are opting out, the number could well be far higher. In a turn of events entirely unanticipated when the ACA was enacted, the legacy of the ACA may be that it contributes to widening health disparities rather than the reduction that had been expected by its supporters.

This result is an injustice that cries out for reform. A first step in that direction is ensuring that states are in possession of—and made to acknowledge—accurate information regarding the economic costs of the Medicaid expansion, which are far less than the potentially bankrupting amount that has been portrayed in some corners. A second step is to emphasize the importance of the incorporation of public health in health policy analysis and design; in addition to benefiting individual health, universal access to health services improves public health. Finally, and most critically, strong voices must demand that health policy be implemented such that it achieves justice for the poorest and most vulnerable among us. Without action to rectify the ACA’s unintended consequences, the United States seems likely to consign its poorest and most vulnerable residents to a continued tenuous health status, in which the only options for care are emergency rooms and those institutions that are willing to provide free or nearly free health services.

Publication Citation

27 Notre Dame J.L. Ethics & Pub. Pol'y 481-512 (2013)