In additionto changing provider payment formulas for Medicare and Medicaid,the ACA dramatically increased the insured rate, particularly instates that opted to expand Medicaid. (Photo: Getty)

The uncertainty surrounding the future of the Affordable CareAct will harm access to care, according to an analysis by the Brookings Institute, aliberal-leaning think-tank.

Christen Linke Young, who specializes in health care law andpolicy, writes in a recent brief that an ongoing challenge to theACA should have been easily quashed by the courts but that thedecision by the 5th Circuit Court of Appeals last month toremand the case to a lower court will sow doubts in the health caremarket that will ultimately hurt patients.

"The extended period of uncertainty is unnecessary and willimpact stakeholders across the health care industry," she writes."Moreover, while some uncertainty may have existed since thelawsuit was first filed or since the lower court judge reached adecision in late 2018, the Fifth Circuit's seeming openness to theargument that the entire law should be invalidated, combined withthe Trump Department of Justice embracing that view in early 2019,has increased the stakes."

Related: What would happen if the ACA wentaway?

Perhaps the gravest threat to the market comes from the prospectof the ACA's protections for pre-existing conditions beingoverturned. People who are counting on being able to change jobs,start businesses or retire without fear of being denied coveragemay reconsider these decisions if there is a chance the ACA will beoverturned.

Health care providers may also rethink investment strategies dueto the uncertainty of the ACA's future. In addition to changingprovider payment formulas for Medicare and Medicaid, the ACAdramatically increased the insured rate, particularly in statesthat opted to expand Medicaid.

In Arkansas, for instance, the uninsured rate has dropped from20 percent to 8 percent. Providers must be taking into account thethreat of those gains being undone.

"A rural health system in Arkansas might be considering whetherto invest in expanded capacity to treat individuals with substanceuse disorder, especially in light of the prevalence of opioid usein the state," writes Young. "But the potential for the overalluninsured rate to more than double – wiping out coverage forsubstance use disorder services for many potential patients – maycomplicate the system's decision-making around thatinvestment."

Similarly, Obamacare introduced voluntary payment models aimedat rewarding providers for cost-savings and better patientoutcomes. However, says Young, providers who opted into thosepayment models generally did so because they believed it would workout better in the long-run, after making certain investments andchanges to their processes. The possibility of the ACA going awaythrows a wrench into those plans.

Overturning Obamacare could also pose a big threat tomanufacturers of generic versions of expensive "biological" drugs.Part of the ACA authorized the FDA to expedite approval ofgenerics.

"But invalidating the ACA would strip the FDA of that authority,making it unlawful for them to approve any new biosimilar drug,"writes Young. "What, then, is a biosimilar manufacturer to do?Should they continue the research and development necessary to seekapproval of new biosimilar drugs, which could save the health caresystem billions of dollars but requires an upfront investment oftens or hundreds of millions of dollars over several years? Orshould they forego new biosimilar research until there is greatercertainty about whether it will remain lawful to sell theproduct?"

Read more: 

• Democrat AGs ask Supreme Court to fast-track ACAdecision
• Uninsured rate rises, despite increase inemployer-sponsored coverage
• 6 ways states are preparing if the ACA isinvalidated