Can the Republicans Repeal Health Reform?

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Guest blog by Gavin Yamey, lead, Evidence to Policy Initiative, Global Health Group, University of California San Francisco,

Last week’s US mid-term elections saw the Republican Party retake the House of Representatives and take 11 governorships away from the Democrats.  While the Democrats still narrowly control the Senate, nevertheless the electoral map is now looking remarkably red, except for the liberal coasts.

So what does all this mean for health reform?

The Republicans in the House and Senate unanimously voted against the Affordable Care Act (ACA), which became law on March 23 2010 and which extends insurance to 32 million people. In the mid-terms, Republicans ran on a bold promise to “repeal and replace” the ACA.   But is this all just political posturing?

I think the chances of the Republicans passing legislation that fully repeals the law are close to zero.   While they now have the votes to pass a repeal bill in the House, such a bill is likely to die in the Senate because all of the Senate Democrats—and the two Independents who caucus with the Democrats—supported ACA and are very unlikely to now “switch sides.” Even in the extremely unlikely event that Republicans in the Senate can win over enough Democrats to their side, President Obama will simply veto the repeal legislation.

So, fortunately, full-scale repeal legislation isn’t going anywhere.

But there are at least three other ways that Republicans could hobble the ACA.

First, they could chip away slowly at the law, for example by trying to deny the funding needed to get it fully operational.  Indeed, the Senate Minority Leader Mitch McConnell, in a highly publicized speech at the right-wing Heritage Foundation two days after the mid-terms, said that Republicans will aim to damage the ACA by “denying funds for implementation” of the measure.

Second, the new Republican governors could also throw a spanner or two in the works.  As I’ve previously written, one of the most impressive features of the ACA is that “individuals and employers will be able to shop for insurance through new online exchanges—the key innovation in the bill—where they can compare the prices, benefits, and consumer rated quality of different plans.”   The ACA mandates states themselves to establish these exchanges by 2014, and this is where the Republican governors can refuse to play ball. As the Wall Street Journal reported,  while governors can’t avoid much of the law, “they can throw sand in its gears and keep states out of involvement in a central part of it—new exchanges for selling insurance policies.”

Third, many of the country’s “red” states are filing lawsuits arguing that the ACA is unconstitutional because it includes a mandate to buy insurance.  These lawsuits appeared to be hopeless, until August 2 2010, when a U.S. district judge, Henry Hudson, appointed to the bench in 2002 by President George W Bush, refused to dismiss the state of Virginia’s challenge to the ACA. These lawsuits will almost certainly end up in the Supreme Court, which currently tilts rightward in its overall composition.

My strong hunch is that, despite challenges to the ACA, the law is here to stay.

My other strong hunch is that the law will eventually become more and more popular with the American public, making it harder and harder to repeal it.  Now, it’s true that polls, such as this one, have shown a roughly 50-50 split between those who support the ACA (or think it should go even further in extending coverage) and those who wish to repeal parts or all of it.  But things get a lot more interesting when pollsters ask the public about specific elements of the act.  In a new poll from the Kaiser Family Foundation, for example:

  • 78% of the public would keep the tax credits to small businesses that offer coverage to their employees
  • 71% would keep the financial assistance to low and middle income Americans who aren’t insured through their jobs to purchase their own coverage
  • 71% would keep the ACA’s ban on insurers denying coverage based on pre-existing medical conditions.

It’s true that the mandate is unpopular (only 27% would keep it).  But the reality is that it is impossible to retain the popular parts of the bill without the mandate.  Everyone must be insured in order to keep premiums low—without a mandate, healthy people might decline to buy insurance, leaving only sicker people in the “insurance pool,” which in turn jacks up premiums (the so-called “insurance death spiral”).

Or, as the brilliant health policy reporter at the Washington Post, Ezra Klein puts it, Republicans are “trying to pretend that they’ll somehow preserve the protections for preexisting conditions while repealing everything that makes those protections possible. But the bill’s unpopular parts are inextricably intertwined with its popular parts.”

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Competing interests:

GY volunteered for, and donated to, Barack Obama’s 2008 presidential campaign, and donated to the congressional campaigns of several Democrats. He is a member of Organizing for America, a community organizing project of the Democratic National Committee. He receives employer-based health insurance from the University of California San Francisco.

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