The threat to do away with Obamacare is once again on the rise nearly 10 years after it was passed, as a major challenge to the health care law got a sympathetic-sounding hearing in a federal appeals court this week.
If the case does ultimately reach the Supreme Court, and five justices agree to strike down the Affordable Care Act, experts say it would upend the U.S. health care system and strip health insurance from an estimated 20 million people. Many millions more would lose crucial protections they might need in case of catastrophic medical issues ― including coverage for those with preexisting conditions.
Republicans in the U.S. Senate don’t appear to be sweating the likelihood of such a scenario, however. Some are pinning their hopes on the courts to reject the challenge, which is backed by the Trump administration, on the grounds that it isn’t serious and is legally moot.
“I actually don’t think the courts are eventually ever going to strike it down,” Sen. Lamar Alexander (R-Tenn.) said Wednesday. He called the case, which was argued before an appeals court in New Orleans on Tuesday, “pretty far-fetched.”
Sen. Susan Collins (R-Maine), a supporter of the law who helped save it in 2017 when Republicans in Congress attempted to repeal it, agreed.
“It’s my hope and belief that the Supreme Court won’t strike the law down,” Collins said.
Still, the latest challenge to the law has advanced in the courts despite widespread derision from legal experts, including conservatives who helped construct and argue previous challenges to the ACA.
It stands a good chance of being taken up by the Supreme Court next year, smack dab in the middle of the 2020 presidential election, creating another headache for the GOP.
“Maybe this is the thing that forces Republicans to come up with a consensus idea of what to do, but we’ve been down this path numerous times without any success on an agreement.”
Republicans have tried over and over again to coalesce around a cheaper and less government-focused replacement for Obamacare, and they’ve failed every time. Cobbling together a plan that preserves some of the most popular parts of the law ― such as its guarantees of coverage for people with preexisting conditions, expanded Medicaid coverage, and provisions allowing young people to remain on their parents’ policy until the age of 26 ― without a mechanism like Obamacare is extremely difficult, and maybe even impossible, a fact that even some Republicans acknowledge.
“Maybe this is the thing that forces Republicans to come up with a consensus idea of what to do, but we’ve been down this path numerous times without any success on an agreement,” Sen. Jerry Moran (R-Kan.) said Wednesday when asked about the latest legal challenge to the law.
Senate Majority Leader Mitch McConnell (R-Ky.) has made clear that he has no plans to take up broad health care legislation until after the 2020 election. (He said so after Trump, seemingly out of nowhere, pledged earlier this year that Republicans will become known as the “party of health care.”)
But in a sign of how far the politics surrounding Obamacare have shifted, McConnell vowed this week to restore coverage for people with preexisting conditions should the Supreme Court uphold the challenge to the law.
“We would act quickly, on a bipartisan basis,” McConnell said at a news conference on Tuesday.
Sen. Thom Tillis (R-N.C.) introduced legislation earlier this year aiming to do just that. Republicans are pointing to the bill as evidence of their good faith commitment to those with preexisting conditions. But while it does prohibit insurers from denying applicants based on pre-existing conditions, experts say Tillis’ bill leaves out several other protections found in the ACA, such as its ban on annual or lifetime limits on benefits, or its provision prohibiting insurers from charging women more than men.
Some Republicans also find it lacking.
“It’s my understanding it does not cover essential health benefits and I think those are important parts of the ACA as well, such as mental health, substance abuse, maternity care, etc. But it is a good start,” Collins told reporters when asked about Tillis’ bill on Tuesday.
The challenge to Obamacare that’s before the courts now doesn’t simply threaten some provisions like its protections for those with preexisting conditions. It would eliminate all of the law ― including its expansion of Medicaid that has benefited millions of people across the country.
Congressional Republicans have fiercely opposed expanding Medicaid even as a number of GOP-controlled states have done so under Obamacare. They’ve called the move costly and unsustainable to the safety net program’s fiscal health in the long run. But they haven’t yet offered a plan that would provide health insurance coverage to a similar number of people as done by Obamacare.
“That would be a real issue, wouldn’t it?” Sen. Ron Johnson (R-Wis.) said Wednesday when asked about those receiving health insurance coverage through Medicaid.
“My guess is the court would understand what it’s doing and give time for Congress to act, and then we would have to act. And that would be a good thing,” he added.
Sen. Kevin Cramer (R-N.D.) said he, too, hoped for a transitional period allowing Congress time to pass a fix if Obamacare is ultimately struck down.
“One thing I do know about this place is it will take whatever time it has,” he said. “Maybe we need something compelling like a decision like this to get everybody to the table and force compromise.”
Correction: A previous version of this article incorrectly described criticism about legislation introduced by Sen. Tillis’ that offers protections for people with preexisting conditions. Health policy experts say it does prohibit insurers from denying applicants based on pre-existing conditions and excluding pre-existing conditions from coverage, but it leaves out other protections, such as those for essential health benefits.