Republicans think they’ve won a huge victory, now that a Texas judge has ruled the Affordable Care Act unconstitutional. But the opposite might be true: They might be paving the way for an even bigger federal role in the health care system and doing long-term harm to their party in the process.
In a complicated ruling, Judge Reed O’Connor sided with 20 Republican-controlled states and declared the Affordable Care Act, aka Obamacare, unconstitutional. The states, led by Texas, had sued after Congress passed a law last year eliminating the penalty for those who go without health insurance. The Trump administration sided with the plaintiffs, who argued that the lack of a penalty invalidated the “individual mandate” provision of the law, and if that part of the law was now invalid, then the whole law was. The judge agreed.
Defendants will appeal the ruling, and the ACA will remain in place for the foreseeable future. But the Supreme Court will probably end up ruling on the matter, perhaps in 2020, with the next presidential election in full swing. That guarantees health care will remain a top election issue, with the fate of millions of patients at stake.
Why Americans are warming to the idea of Obamacare
Republicans seem not to have noticed that Americans are warming to the idea of a greater government role in the health care system, largely because costs remain exorbitant for many people. When the major provisions of the ACA went into effect in 2014, the law’s approval rating was a dismal 34%, according to the Kaiser Family Foundation. But the law’s approval rating has risen 19 points since then, to 53%. The law would be more popular still if Congress were able to make sensible improvements—most importantly, lowering insurance costs for people who buy their own policies but earn too much money to qualify for ACA subsidies.
The biggest jump in the ACA’s approval came in 2017, when Congressional Republicans came close to killing it. So the latest GOP assault on the ACA might boost its popularity even more.
The ACA banned the old practice of withholding coverage from people with pre-existing conditions, or charging them dramatically more. In an August Kaiser poll, 90% of respondents said ACA protections for people with pre-existing conditions are either important or very important. It’s rare that 90% of Americans agree on anything. Yet Republicans seem to be concerned with the other 10%.
Over the summer, Senate Republicans drew up their own bill addressing pre-existing conditions, so they could have a plan on the shelf in case the Texas judge ruled as he did. But it’s a watered-down version of the ACA. “The Republican legislation is not as strong as the ACA,” says Katie Keith, a faculty member at Georgetown University Law Center who follows health policy. “It would leave some significant gaps for people with pre-existing conditions.”
There are other popular parts of the ACA, such as the provision allowing young people to stay on their parents’ plan through the age of 25, and another that lowers prescription drug costs for some Medicare enrollees. And of course there are around 18 million Americans who have health care coverage under the ACA and would lose coverage without the law.
If the Supreme Court upholds the Texas ruling and strikes down the ACA, Republicans would probably look for ways to restore some of those popular provisions. But momentum might shift toward the Democrats’ “Medicare for all” plan, which would expand the health program for seniors to people under 65. Medicare for all began as a fringy Bernie Sanders idea during the 2016 presidential campaign. But many mainstream Democrats now support the idea, either as a modest expansion of Medicare or a full single-payer system that would replace all other options.
A poll last summer found a whopping 70% of Americans like the idea—including 52% of Republicans. If it covered everybody, Medicare for all would be enormously expensive, and polls don’t always ask people whether they’re willing to pay higher taxes to finance a new benefit. So it’s not on the verge of becoming law. But if Republicans succeed in killing the ACA, voters are going to want to know—what next? And Democrats, for now, seem to have a better answer than Republicans.
Rick Newman is the author of four books, including “Rebounders: How Winners Pivot from