While most eyes focused on control of the U.S. Congress and, in our world, what that means for health policy, a wide array of election outcomes at the state level will have a meaningful impact on access and care delivery for many years to come.
Here we examine changes to state health policy in some key domains: Medicaid, access to abortion services, and health care costs. With Washington DC facing two years of legislative gridlock, implementation of these state-level developments – and new ones assuredly to come – will likely have as big of an impact on the quality of care that Americans receive than anything coming out of D.C.
Election day likely featured the last state in the foreseeable future to expand Medicaid using a citizen-initiated ballot measure. Voters in South Dakota approved a constitutional amendment to extend Medicaid eligibility under the Affordable Care Act (ACA) to adults with incomes below 138 percent of the federal poverty level. An estimated 42,500 South Dakotans will be covered by the expansion beginning July 1, 2023.
Of the remaining 11 states that have not adopted the Medicaid expansion, only two permit ballot initiatives: Florida and Wyoming. Florida requires a 60 percent supermajority, which makes approving such measures challenging. In Wyoming, ballot initiatives cannot “dedicate revenues” or spend state funds, therefore requiring the state legislature and governor to approve funding to implement an approved Medicaid expansion. Mississippi’s ballot initiative process was invalidated in 2021 by the state Supreme Court and has yet to be restored. Notably, Wisconsin offers Medicaid coverage to adults with incomes up to 100 percent of the federal poverty level through a Section 1115 demonstration waiver, eliminating the coverage gap that individuals in many other non-expansion states face.
In the few holdout states with Democratic governors, the state legislative process, though with its own set of challenges, offers a potentially viable path towards Medicaid expansion. In Kansas, newly reelected Democrat Governor Laura Kelly vowed in her victory speech to “expand Medicaid once and for all.” During Governor Kelly’s first term, the Republican-controlled state legislature repeatedly blocked legislation to expand Medicaid, including a bipartisan compromise negotiated with Republican Senate Majority Leader Jim Denning.
Prospects for Medicaid expansion through state action are more encouraging in North Carolina. Democratic Governor Roy Cooper, who is up for reelection in 2024, and the Republican-led North Carolina General Assembly, came close in 2022. Both chambers passed different versions of a Medicaid expansion bill (House Bill 149) in overwhelmingly bipartisan votes. The effort collapsed largely over changes to Certificate of Need regulations, strongly opposed by the state’s hospitals, in the Senate’s expansion proposal.
The majority of non-expansion states continue to be governed by Republican trifectas generally hostile towards the ACA: Alabama, Florida, Georgia, Mississippi, South Carolina, Tennessee, Texas, and Wyoming. They have not budged, despite the substantial temporary incentive in the American Rescue Plan Act of 2021 (P.L. 117-2) for states to adopt the Medicaid expansion. The elections did not change the political environment in these states, with most gubernatorial races uncompetitive. In Georgia, Republican Brian Kemp again defeated Democrat Stacey Abrams in what many considered to be Democrats’ best chance to flip a governorship and build momentum for Medicaid expansion.
With seismic political shifts in favor of the ACA unlikely in holdout states, more than two million uninsured adults will continue to lack access to affordable health coverage. The state elections underscored the need for federal legislative action to close the Medicaid coverage gap. However, federal election results so far do not bode well for such reforms.
Abortion was a key issue for many voters heading into the election following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that permits state-level abortion bans. According to the Kaiser Family Foundation, 25 percent of voters said that the Supreme Court’s decision was the single most important factor to them in this election and another 45 percent said it was an important factor. Candidates on both sides of the aisle campaigned with promises to either prevent or enforce abortion restrictions. Additionally, California, Michigan, and Vermont approved ballot measures that protect abortion access while Kentucky shot down an initiative that would have explicitly denied a right to abortion. Below we highlight key states with changes in the administration or state constitution that will impact abortion access.
Currently, Kentucky has two laws that ban abortion — one from conception and the other after fetal cardiac activity is detected — that went into effect after the Supreme Court’s decision. Last Tuesday, however, 52.4 percent of voters rejected a proposed state constitutional amendment that would have specified that there is no right to an abortion in Kentucky. The referendum would have made it difficult to challenge antiabortion legislation in court which is important because the state’s bans are currently undergoing legal challenges. The Kentucky Supreme Court is expected to hear oral arguments challenging the laws on November 12, 2022.
Abortion is currently legal in Michigan until “fetal viability,” but a 1931 ban that was blocked by courts in September is being appealed. Abortion will be protected going forward after 56.2 percent of voters approved an amendment to the state constitution that protects the right of women to make decisions about pregnancy, contraception, childbirth, and abortion. The state can still regulate later-term abortions.
North Carolina is one of only a few southern states in which abortion is legal, largely due to Governor Roy Cooper (D) who said he will veto any anti-abortion legislation. Republicans failed to win a veto-proof supermajority in the legislature in this election, but did flip two seats on the state’s Supreme Court which will give them a 5-2 majority beginning next year that could impact the outcome of subsequent legal challenges to abortion access in the state.
Following the Supreme Court decision, an Arizona judge allowed an 1864 abortion ban to go into effect. Enforcement of the law was blocked after another judge said that the ban needs to be reconciled with more recent laws, including a ban on abortions after 15 weeks. Democratic candidate for Attorney General Kris Mayes promised to not prosecute people who seek abortions or who provide abortions if the 1864 law does go into effect. As of the time this article went to print, she had a small lead but the race is still too close to call. Katie Hobbs, the victorious Democratic candidate for governor, ran on a promise to veto any anti-abortion legislation while her Republican opponent, Kari Lake, supported an abortion ban.
Health Care Costs
As previously explored by Health Affairs, national health spending per person in the United States doubled between 2000 and 2020 but differs substantially across states due to variations in demand for care, underlying demographics, and how health services are provided. As new leadership is assumed in states, we may see policies aimed at controlling health care costs and spending. Below we highlight key states whose governorship flipped or had ballot measures that may influence health care cost policy.
State residents approved a ballot initiative that would limit interest rates for debt accrued from receiving health care services to 3 percent – a significant reduction from a previous cap of 10 percent. The Kaiser Family Foundation has found that approximately 9 percent of all adults owe medical debt, including 3 million individuals who owe more than $10,000. Experts predict that the measure could serve as a model for other states to follow.
In an interesting development that may portend an important cultural shift in health care delivery, Colorado voters approved a statewide referendum to legalize therapeutic applications and personal use of psilocybin and other naturally occurring psychedelic medicines. In doing so, the state joined Oregon and Washington, D.C., in decriminalizing the active ingredient in “magic mushrooms,” a policy also adopted by California in therapeutic contexts and a handful of municipalities across the country. Perhaps surprisingly and perhaps not, Coloradans simultaneously rejected ballot initiatives that would have expanded access to alcohol.
This legislative session, Maryland explored legislation to establish a single-payer commission and enacted legislation that requires a workgroup to make recommendations for a subsidy program to support small businesses. When laying out his 100-day plan, newly elected Democratic Gov. Wes Moore committed to working to ensure universal access to affordable health coverage for all residents. The Maryland legislature may be reinvigorated to reexamine legislation towards a single-payer program under the new governorship.
Similarly, Massachusetts has explored legislation to establish a public option and a single payer system, as well as a pilot program to expand eligibility for the state’s health insurance subsidy program, all which aim to improve health care costs for the state and residents. The subsidy pilot program was ultimately vetoed by former Republican Governor Charlie Baker, but under newly elected Democratic Governor Maura Healy, such health care reforms may receive greater support.
In 2021, the state enacted Senate Bill 420, which would establish a public option to be offered on the individual and small group markets in plan year 2026. State officials estimate that a public option would generate approximately $300 million in health care savings over the first five years of operation and $1 billion by the tenth year of operation. However, newly elected Republican Governor Joe Lombardo has expressed opposition to the public option and has raised doubts about its ability to improve health care affordability. The Governor may disrupt implementation or support legislation to repeal the program.
Oregon voters approved an amendment to the state constitution that would require the state to ensure that every resident has access to “cost-effective, clinically appropriate, and affordable health care as a fundamental right.” The Oregon legislature previously enacted legislation to establish a Task Force on Universal Health Care and newly elected Governor Tina Kotek may be support new bills to advance the ballot measure.
Laboratories Of Democracy
All told, the midterm elections yielded ongoing evolution of health policy in our “laboratories of democracy.” In line with changes at the federal level, modest Democratic gains (or mitigated losses) boded well for the Medicaid program, access to abortion services, and more aggressive measures to reduce health care costs.