Obamacare’s nine lives
Obamacare has been under siege since before it even became law. So far it has persevered, but when President-elect Trump takes office, the law will face its most dire test yet. But the moral sensibility animating the law remains the source of its resilience — and its best hope to survive yet again.
Obamacare has made many narrow escapes both before and after its enactment. For months in 2009, health reform languished in the Senate Finance Committee as Democratic leaders searched in vain for Republican support. After a seemingly interminable waiting game, hopes for bipartisan support for health reform were snuffed out entirely during the Tea Party summer of 2009 when members of Congress were confronted by enraged constituents fueled by conspiratorial fake news about death panels and socialized medicine.
At the same time, the Obama administration was negotiating deals to win support (or at least neutralize opposition) of key industry and legislative stakeholders. Deals were struck with insurers and pharmaceutical companies — two industries that helped sink Bill Clinton’s healthcare effort in the ’90s. And House Democratic leaders had to corral members of their caucus who feared that the law might subsidize abortion.
After Obamacare passed in the House on a narrow 220–215 vote, attention turned to the Senate, where Democrats needed all 60 votes in their caucus to overcome a Republican filibuster. This meant striking sweetheart deals to appease a handful of centrist senators. The most painful deal for liberals was Senator Joseph Lieberman’s insistence on removing any public option or Medicare buy-in from the law. Though Lieberman’s demands threatened to spark a revolt from the left, the Senate accommodated him and passed its version of Obamacare without a vote to spare on Christmas Eve 2009.
The differences between the House and Senate bills still needed to be ironed out in conference committee. But in January 2010, Republican Scott Brown won an upset victory to fill the late liberal icon Ted Kennedy’s Senate seat, vowing to be the crucial 41st vote against Obamacare. The advance of health reform suddenly ground to a halt. But in March, House Democrats heaved Obamacare over the finish line by passing the Senate’s version and an accompanying reconciliation bill without any Republican support.
Minutes after Obama signed the Affordable Care Act into law, fourteen red state attorneys general sued to invalidate the law, arguing that its individual mandate to purchase insurance violated the Constitution. Obamacare’s fate hung in the balance before the Supreme Court, with four conservative justices ready to throw out the law entirely. The law was spared only by an apparent last-minute change of heart by Chief Justice John Roberts to construe the mandate as a run-of-the-mill tax.
Meanwhile, the administration readied the law for public implementation. In a radical last-ditch effort to kill Obamacare before it became a live benefit for millions of people, Senator Ted Cruz and other congressional Republicans shut down the government for two weeks while demanding full repeal of the law. Though the GOP ultimately caved, the reckless stunt was quickly overshadowed by the disastrous launch of Obamacare’s online portal for individuals to purchase insurance.
Unable to repeal the law in Congress, conservatives dreamed up a backdoor way to unravel Obamacare’s individual mandate. Seizing on an ambiguous phrase in the law, conservative lawyers argued that subsidies to help individuals afford insurance were unavailable in more than thirty states that refused to run their own marketplaces. If victorious, the lawsuit would have sunk the law into dysfunctional death spirals in most of the country. But the Supreme Court cut through the noise and rejected such an outcome as contrary to Congress’s express purpose of expanding health insurance coverage, not reducing it.
Eight years of trials and tribulations took a toll on the law. The unending partisan fever over healthcare obstructed much-needed legislative fixes after the law’s rushed enactment. It also hindered Obamacare from ever garnering broad public support. Litigation kneecapped the law’s Medicaid expansion, costing 2.5 million people health insurance in obstructionist red states. And Congressional Republicans destabilized the individual marketplaces this year by gutting the law’s protections for participating insurers.
But the law’s successes have been real. More than 20 million people have gained insurance, sending uninsured rates to record lows. Obamacare created a legally enforceable right to obtain health insurance regardless of one’s health status. And after a tumultuous 2016, the law’s health exchanges are finally settling in, with record numbers of new enrollees and improvements in insurers’ finances.
Still, Obamacare is about to face its gravest threat yet. No one knows if Democrats will be able to win an uphill battle to save Obamacare from a unified conservative government hell-bent on repeal. To conservatives, the law’s many brushes with death are evidence that it was an illegitimate overreach from the start.
But Obamacare’s ability to survive so many close calls also speaks to the deeper moral force of universal healthcare. Time and again, the law has been propelled by the powerful sentiment that healthcare should be a right, not a privilege — an aspiration that Obamacare made serious leaps toward achieving. Democrats must stick to this principle to frame the coming repeal debate and insist that Republican proposals treat healthcare as a fundamental right, too.
Moreover, for all the battles waged in defense of Obamacare, conservatives will have to doubly wage them to repeal the law and then replace it. And they’ll be fighting those battles in a post-Obama environment where expansive, near-universal coverage is now the baseline cultural expectation. For starters, conservatives are already discovering the need to cut deals with insurers to protect Obamacare enrollees after repeal. And a number of Republican senators are already expressing reservations about plunging into repeal without any consensus replacement plan. Repeal and replace will be far from easy.
We ought to be skeptical that Trump and congressional Republicans have the political stamina necessary to undertake those battles. Obamacare will be more vulnerable than ever once it loses its presidential protector come January 20. But for eight years, center-left health reform has prevailed against constant slings and arrows because its moral foundations are strong. Obamacare’s tendency to survive may just be what spares it again.