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.