Maine urges Supreme Court to uphold Obamacare subsidies

A man looks over the website. REUTERS|Mike Segar

A man looks over the website. REUTERS|Mike Segar

Maine has joined the fray over a U.S. Supreme Court case that could potentially deal a crushing blow to Obamacare. Or…not.

This summer, the court will decide the fate of a critical piece of the law, the federal subsidies that help consumers to afford their health insurance. As we explained in our ACA 201 series, at issue is whether the subsidies apply only in states that set up their own health insurance marketplaces, or, as is the case now, also in states that use the federal marketplace.

More than half of all states, including Maine, use the federal marketplace It’s geared toward people who buy their own health insurance rather than get coverage through work or the government.

The case hangs on some imprecise wording in the health reform law. If the court decides the subsidies, issued in the form of tax credits, can’t be issued to consumers in states, millions of consumers could drop or forgo insurance because it’s too expensive without the financial leg up. In Maine, that’s nearly all of the 62,000 people who have enrolled so far through for coverage in 2015 (open enrollment ends on Feb. 15). Almost 90 percent qualified for financial assistance.

In 2014, the subsidies slashed Mainers’ average premiums from $443 to $99 a month.

People who can’t get affordable health insurance through their job and earn between 100 percent and 400 percent of the federal poverty level (between $23,850 and a $95,400 a year for a family of four) are eligible.

If the court rules in favor of the subsidies, nothing would change for consumers. Everyone could just go about their insurance-buying business as usual.

That’s what Maine Attorney General Janet Mills is rooting for, we’ve just learned. She joined 21 other states and the District of Columbia in an “amicus brief” filed with the court arguing that the subsidies should be available in all states, as the Portland Press Herald reported today.

Amicus briefs are filed by those who aren’t official parties to a case but have a stake in the ruling and hope to sway or inform the justices.

Maine Attorney General Janet Mills

Maine Attorney General Janet Mills

It’s an interesting move by AG Mills, because Gov. Paul LePage is a vocal opponent of Obamacare, including another one of its provisions, the expansion of Medicaid envisioned under the law. What’s LePage’s response? I asked Mills’ and LePage’s offices for comment this morning. Nothing back yet from LePage, but here’s what AG spokesman Timothy Feeley said in an email.

“Our lawyers who reviewed the brief agree that there is no legal basis to distinguish between states that have their own exchanges and states, like Maine, that did not develop their own health insurance exchange, for purposes of the federal subsidy. We have not spoken with the Governor, but it would be difficult to envision any public official wanting to deprive nearly 60,000 Maine citizens who have obtained health coverage with the help of the subsidy of this vital benefit. It is also in the interests of Maine hospitals and physicians and health care workers that as many people as possible be covered. So, both from a legal and a public policy standpoint, the brief makes sense.”

In July 2014, LePage said Maine couldn’t afford to pick up the cost of the subsidies, which are funded by federal taxpayer dollars. Responding to conflicting rulings on the issue by lower courts, he said in a statement, “First the federal government forced people to buy health insurance. Now, if this ruling holds up, these people would lose their federal subsidies to pay for that health insurance. Their premiums could skyrocket for plans that in some cases might be more expensive than their previous plans, which were canceled as a result of the law, making their health insurance unaffordable.”

He urged Mainers to “call on those in Congress who voted for this scheme to get to work and fix this law immediately.”

The Supreme Court’s decision won’t be retroactive, so consumers wouldn’t have to pay anything back if the justices rule against the subsidies. But the financial help wouldn’t be available in 2016, making health insurance unaffordable for millions of people. The Urban Institute and Robert Wood Johnson Foundation estimate that 62,000 Maine residents would lose subsidies worth $257 million come 2016, boosting the number of uninsured people in the state by 50,000. That’s exactly the opposite of the ACA’s intent, to expand coverage to millions more Americans.

Supporters of the ACA point to this fact, arguing the law’s drafters clearly wanted everyone to have access to the subsidies. Opponents are exploiting the imprecise language in an attempt to undermine the law on a technicality, they say.

The plaintiffs in the case — King v. Burwell — contend that the law’s authors deliberately wrote that the tax credits are available through marketplaces “established by the State.” The intent was to compel states to set up their own marketplaces by holding the tax credits over their heads, they say.

The court will take up the case on March 4, with a decision expected in June.

If you get your health insurance through work or government programs like Medicaid or Medicare — like most Mainers — this case won’t directly affect your health insurance bill. Maybe that’s part of the reason why — despite all the fuss among politicians and policy wonks — more than half of Americans have heard zip about it, according to a new Kaiser Family Foundation poll. kaiserpoll

Jackie Farwell

About Jackie Farwell

I'm the health editor for the Bangor Daily News, a Bangor native, a UMaine grad, and a weekend crossword warrior. I never get sick of writing about Maine people, geeking out over health care data, and finding new ways to help you stay well. I live in Gorham with my husband Nick and our hound dog Riley.