Republican congressional candidates have declared war on the Patient Protection and Affordable Care Act — or Obamacare, as they call it. They have called for its repeal, and promised to work toward that end if elected.
But the rhetoric is largely political theater. Even if Republicans were to gain control of both the House and Senate in the upcoming election, they would not have 60 votes in the Senate to overcome a filibuster. And President Barack Obama would surely wield his veto pen to prevent destruction of his signature legislative achievement.
Still, the knives are out, and though the foes of health care reform can’t turn back the clock, they certainly will try to inflict whatever damage they can. The reforms passed by Congress require five years of implementation, which will involve complex decisions at the federal and state level. At every step, vociferous opponents, including virtually all Republicans and many special-interest groups, will be looking for ways to undermine the reforms.
In Congress, there are two tactics that a new Republican majority might use to slow health care reform. One is to attach amendments to essential, non-health care-related legislation to delay new taxes and benefits and undercut cost-control measures (such as the new commission to monitor and control Medicare expenditures). The GOP is also likely to use committee hearings and investigations to harass Obama administration officials and prod federal and state officials to loosen rules and accommodate private insurers.
Another avenue for fighting the law will be the courts. Legal cases asking judges to rule the reforms unconstitutional are great fundraising tools for opponents, and they will probably produce the occasional legal victory as the cases work their way through the courts.
But most legal scholars agree that in the end, all or most of the legislation will probably survive. As health care reform was designed in Congress during 2009 and 2010, its advocates chose the most advantageous legal terrain; indeed, the actual bill can be read as a conversation with the courts, complete with findings and quotes from prior judicial decisions (including those of the Supreme Court’s current conservative coalition).
For the Supreme Court to ultimately find the law unconstitutional would uproot a wide swath of past decisions, including established conservative jurisprudence relating to restricting abortion, extending the right to bear arms, outlawing medical marijuana and other findings.
Another avenue of attack will come — is already coming — from the health care industry. As the Obama administration and states draw up rules to implement the new law, they are also having to parry arguments from lobbyists over such issues as how much of the premiums collected by insurance companies are devoted to actual health care, as opposed to administrative overhead and CEO bonuses. Big profits are at stake, and not surprisingly, insurers as well as employers, health care providers and the manufacturers of medical devices and pharmaceutical products are all pressing for rules that grant them maximum discretion and generous payments.
Administration officials have to decide when to play tough and when to give temporary ground — for example, making concessions that would prevent insurers or businesses from dumping people who currently have insurance before the full implementation of the reforms in 2014.
The battle also will play out at the state level, where some Republican governors are already dragging their feet on setting up the new insurance exchanges that will allow people to use subsidies and shop for insurance plans.
All of these attempts to undermine the Patient Protection and Affordable Care Act carry a potential cost. Though public opinion remains closely divided about the law as a whole, majorities of Americans approve of many of its specifics, such as rules that will stop insurers from dropping sick people, or that keep young adults eligible to stay on family insurance plans, or provide new benefits for seniors and tax breaks for businesses. Other aspects — including subsidies for lower-income Americans, measures to control rapidly rising health care costs and a requirement that people must purchase insurance or pay a penalty — are more controversial.
Still, the more Americans learn about threats to popular parts of health care reform, the less they will like those threatening to go back to 2009. Republicans may soon learn that reopening years of battle over health care reform will play poorly with most Americans.
Moreover, if Republicans try to undo certain aspects of the plan, they may find themselves alienating some of their campaign contributors. Insurance companies and health care businesses are giving big money to Republicans in this cycle, and they will expect a return on their investment. But a couple of the provisions most hated by the right wing of the party and by “tea partyers” are ones that health care businesses have embraced.
The “individual mandate” rule, for example, which requires most Americans to buy insurance after federal subsidies make it affordable, is something many health care businesses want to keep, because it promises more paying customers and encourages people without known health problems to carry insurance, thus spreading out the risk. On some issues, GOP leaders will have to choose between pleasing donors and pleasing the tea partyers.
It’s not surprising that we’re seeing pushback to Obama’s health care reforms. Social Security was passed in 1935, but it faced delays and challenges for decades before it was fully embraced as an essential part of U.S. economic and family life. Medicare went through ups and downs too.
The Patient Protection and Affordable Care Act faces years of struggles in Washington and state capitals, and may be delayed or watered down in the short run. But over the years, many states will work out their own versions of broad coverage and effective regulation, as California is already doing. Bit by bit, with a lot of variations across the 50 states, the U.S. health care system will evolve toward more secure, affordable and cost-effective health care for all Americans.
Obama’s legacy will stand in the end, and we’re betting that by 2025, if not sooner, we will look back and wonder what all the shouting was about.
Lawrence R. Jacobs is director of the Center for the Study of Politics in the Hubert Humphrey Institute at the University of Minnesota, and Theda Skocpol is a professor of government and sociology at Harvard University. They are the authors of the just-published book, “Health Reform and American Politics: What Everyone Needs To Know.” They wrote this for The Los Angeles Times.