Can Republicans rescind ‘Obamacare’?


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

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.


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