As America’s love-hate relationship with healthcare reform approaches its first anniversary, the law is proving just as divisive now as it was during the midterm elections. Fittingly, the Patient Protection and Affordable Care Act of 2010 (ACA), which has polarized the country, is moving forward along three separate tracks.
“Usually, at this point of the game one would only be worrying about the implementation,” says Leighton Ku, a health-policy analyst at George Washington University. “But, obviously, there’s been enough discord that the political route and the legal route are now equally important.”
Here’s a look at where the ACA stands from practical, political, and legal standpoints, along with the major players involved in the ongoing tussle.
The Battle of Public Perception
America is hopelessly divided. Despite pollsters’ best efforts to break the stalemate, the collective numbers still suggest that roughly equal numbers of respondents favor and oppose healthcare reform (with a slight advantage to opponents). It’s a trend line that has barely budged since the bill’s enactment last March.
In January, the Republican-led House of Representatives voted to repeal the entire reform act in what analysts have called a largely symbolic gesture, given that the repeal effort subsequently failed in the Democratic-controlled Senate. Even so, Ku says, the vote fulfills a Republican campaign promise and sends a strong signal to the party’s political base. “What’s driving the Republicans is that their constituencies really don’t like it,” agrees Robert J. Blendon, a professor of health policy and political analysis at the Harvard School of Public Health. “Almost all Republican congressmen who ran had on their website, ‘I will repeal this bill if elected.’ ”
But opposition doesn’t necessarily mean voters want everything repealed, a caveat also borne out by recent polling. “Where the public stands is a little more ambiguous than what the campaign rhetoric is,” Ku says. That ambiguity could present an opportunity for both parties to reframe the debate in the coming months in an effort to win over a clear majority of the public. With the economy of paramount concern, Republicans have cast healthcare reform as a “job-destroying” act that will speed the country’s descent into bankruptcy.
If the economy improves, however, opposition to the law is likely to soften. And with their “no” vote behind them, Republicans in the House will be expected to craft a coherent alternative to the legislation. “Now comes the tough part,” Ku says.
Democrats, meanwhile, have largely regrouped and are being more vocal about the law’s necessity—after a campaign season in which many conservative Democrats largely avoided talking about it, or even touted their opposition to it, and were beaten anyway.
In the absence of wholesale repeal, a few individual provisions might be stripped away. Most key elements cannot be defunded, although Republicans could cut funding streams to Health and Human Services (HHS) or the IRS to hamper implementation. Congress also could choose not to appropriate money to the estimated $106 billion worth of new spending authorizations. A sizable percentage of that pool covers popular pre-existing programs, however, which makes a “no” vote politically more risky.
A Matter of Time
The nonpartisan Congressional Budget Office has predicted that repealing the healthcare reform legislation would increase the federal deficit by $230 billion over the next decade. Even so, the law’s supporters are finding little traction among voters who have heard repeated claims by Republicans that the act itself will push the country deeper into debt (many Republicans say the CBO estimate is based on faulty numbers provided by the law’s supporters). One big reason why: The tanking economy has eroded public trust in the government. “The ratings of trust in the federal government are so low,” Blendon says, “you need a stethoscope to try to hear them.”
And then there’s the matter of time. Because the act’s biggest provisions don’t go into effect until 2014, there are no made-for-media moments—like the large numbers of previously uninsured receiving health insurance cards—to counter the dire predictions that patients will lose their doctors. Instead, the White House has tried to make the most of smaller provisions now in effect, such as one that allows children to stay on a parent’s insurance until their 26th birthday, another that lifts the lifetime caps on insurance coverage, and a third that bans insurers from dropping children with pre-existing conditions (a video explaining what the ACA does and doesn’t do, produced by the Kaiser Family Foundation, is available at http://healthreform.kff.org/The Animation.aspx).
In mid-January, on the eve of the House vote to repeal the entire act, the White House released an HHS study to bolster its contention that the law will eventually aid tens of millions, and, conversely, that any repeal would harm them (www.healthcare.gov/center/reports/preexisting.html). The study estimates that 50 million to 129 million Americans under the age of 65 have pre-existing conditions that would, theoretically, make it harder for them to buy insurance in the absence of regulations requiring coverage. But the study also reports that up to 82 million of these people already have employer-provided insurance, meaning they wouldn’t be affected either way unless they switch jobs or become unemployed.
The White House’s case has been made harder by the confluence of a poor economy, growing concern over the deficit, and the ongoing battle over whether and how to fix the Medicare reimbursement rate paid to doctors, according to Blendon. When the rate paid to doctors temporarily nosedived last June, stories about doctors refusing to see Medicare beneficiaries proliferated among alarmed seniors (Congress eventually passed another short-term patch). The memory of that lack of medical access is now being conflated with the potential side effects of the new law by the constituency most likely to vote (seniors) and most skeptical in general about healthcare reform.
More than half the states have now joined lawsuits challenging the ACA’s constitutionality. In the first of what observers expect to be a multitude of legal decisions, federal judges in two cases upheld the law, and the individual mandate requiring people to buy health insurance was ruled unconstitutional in a third.
Ultimately, most experts believe the Supreme Court will have the final say, likely before the 2012 elections. Ku says analysts already are talking about a possible 5-4 decision, with Justice Anthony Kennedy as the potential swing vote—though so far, he’s given no clear hints about which way he may be leaning. Even if the individual mandate component is struck down, Ku says, the court could uphold everything else, changing its overall impact but not the implementation of most provisions. TH
Bryn Nelson is a freelance medical writer based in Seattle.