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10 Health Law and Policy Takeaways from the Midterm Election

Health care issues were a major driver of voting across the country this week. Here are some key takeaways from the health-related ballot measures and newly elected candidates that emerged from Tuesday’s election.


1. Medicaid was the biggest winner! Ballot measures expanding Medicaid prevailed in Idaho, Nebraska and Utah, providing insurance for more than 300, 000 people. Maine’s new governor immediately announced plans to enact the state’s delayed expansion while the Kansas governor, also a newly elected Democrat, is likely to move to expand despite a potentially hostile legislature. Although Montana has already approved expansion, voters would not fund its financial precondition with a new tobacco tax. Meanwhile in Wisconsin the defeat of Governor Walker might presage changes in the state’s recently approved Section 1115 waiver that permitted work requirements and skin-in-the game provisions.

2. The ACA continues its miraculous survival. Surely it must now be safe from repeal and replace. However, its legislative safety may not be the priority. Texas v. U.S. and its existential threat remains. Neither will control of the House do much to bring to a halt to what some view as the sabotage of the ACA by the Trump administration. Notwithstanding, the worst of skimpy plans and Section 1332 waivers that spill over the guardrails will likely be greeted by hostile hearings (lots and lots of hearings!) as assumed Democrat committee chairs such as Reps. Frank Pallone, Lloyd Doggett, Elijah Cummings, and Rosa DeLauro assert their newfound authority.

3. In some states, the most important issues once again involved the never-ending battle over abortion rights. Voters in Alabama and West Virginia approved new constitutional amendments denying abortion rights or any state funding for such procedures. The Alabama ballot initiative also granted fetuses full “personhood” rights. Oregon voters went the other way, defeating Measure 106, which would have prohibited publicly funded health care programs from covering abortion. Meanwhile, the GOP’s increased majority in the Senate likely will decrease the influence of the two swing Republicans Lisa Murkowski and Susan Collins, increasing the likelihood of Senate approval of judges willing to overturn Roe v. Wade.

4. Massachusetts voters disapproved an attempted repeal of the state’s 2016 law extending nondiscrimination protections to transgender people, including their use of public bathrooms and locker rooms. In the meantime, federal rules made under ACA Section 1557 remain in judicial limbo while awaiting a revised rule.

5. Massachusetts voters also disapproved of an attempt to write nurse-to-patient ratios into law. Underlying this issue are complex questions about staffing, quality, and the power of the nurses’ associations. Only California has such a law mandating minimum nurse-to-patient staffing with specific ratios for different types of hospital units.

6. California’s new governor ran on a promise to overhaul the healthcare system. However, indications are that this will be approached as a piecemeal process. At least Governor Newson will be spared the angst of the dialysis industry because voters rejected a proposal that would have capped the profits of dialysis providers.

7. The trend towards broader legalization of marijuana continues. Michigan voters passed a broad recreational measure, although a similar provision failed in North Dakota. Missouri and Utah both passed medical marijuana ballot measures.

8. In Ohio, Issue 1, which would have broadly decriminalized many drug crimes and redirect savings from corrections expenditures to drug treatment, crime victim, and rehabilitation programs, was defeated 64.58 percent to 35.42 percent. Nevertheless, Issue 1 may live on as a fascinating approach to addictions initiatives, leveraging grass roots activism in a red state. We may well see more of the same!

9. Looking ahead, what price do we pay for bipartisanship? There aren’t too many areas where positive health care legislation is likely. However, some optimism may be justified regarding improvements in privacy, hopefully to include the protection of health information that exists outside of the HIPAA “zone.” There is also an outside chance of some agreement on drug prices. And, somewhere in a legislative drawer, is the Alexander-Murray proposal on cost-sharing subsidies and reinsurance. Maybe it’s time to dust it off?

10. Finally, a plurality of voters identified healthcare as the most important issue in the midterm election. The next two years may help us identify exactly what that means. Is it code for single payer universal coverage, a vote for ACA status quo, or merely a coalescence around the prohibitions on preexisting condition clauses?

Nicolas P. Terry

Nicolas P. Terry

Nicolas Terry is the Hall Render Professor of Law at Indiana University McKinney School of Law where he serves as the Executive Director of the Hall Center for Law and Health and teaches various healthcare and health policy courses. His recent scholarship has dealt with health privacy, mobile health, the Internet of Things, Big Data, AI, and the opioid overdose epidemic. He serves on IU’s Grand Challenges Scientific Leadership Team, working on the addictions crisis and is the PI on addictions law and policy Grand Challenge grants. His podcast is at TWIHL.com, and he is @nicolasterry on Twitter.

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