Republicans are nearing an opportunity to undo Obamacare that could wreak unprecedented disruption on healthcare markets and expose the party to tremendous political risk in the 2020 elections.
A Republican-led lawsuit against Obamacare working its way through the courts could leave at least 20 million people uninsured and expose sick patients to higher costs. Meanwhile, Republicans in Congress are without a backup plan and are struggling to devise one.
In effect, the GOP is once again nearing its near decade-long goal of undoing the healthcare law, but in such a way that would leave them totally unprepared and responsible for far more dislocation even than President Barack Obama was in 2013, when millions suddenly saw their insurance plans changed.
“‘When the gods wish to punish us they answer our prayers,'” said Jesse Ferguson, a Democratic strategist who worked on Hillary Clinton’s campaign, quoting the Irish poet and playwright Oscar Wilde. “If the law is struck down, that will answer a 10-year prayer for Republicans, but voters will punish them for it.”
The legal challenge in question was mounted by GOP state officials and is supported by President Trump. It says Obamacare should be thrown out because it lacks an essential component: the fine on the uninsured, which Congress zeroed out as part of the 2017 Republican tax overhaul.
While the suit was initially considered a long shot, a federal judge already declared the healthcare law unconstitutional. It is now being weighed by an appeals court panel comprising three judges, two of whom are Republican appointees.
The appeals court may send the case back to the lower courts to sort out, which would likely put the fate of the law on ice until after the election. Or the losing side will appeal the decision to the Supreme Court, leaving the justices to decide whether to take it up right before the 2020 election.
If Obamacare is declared unconstitutional by the Supreme Court, then its popular provisions would go away: the expansion of government coverage to the poor, rules saying insurers can’t turn away sick people or charge them more than healthy people, and a provision that lets young people stay on their parents’ coverage until age 26.
Senate Majority Leader Mitch McConnell and other Republicans have said that, if Obamacare falls, they would act quickly to replace the law and maintain protections for the sick, and others have said that the necessity to act would spur them into action. Democrats, though, note that, while Republicans have succeeded with show votes to repeal Obamacare in the past, they failed, in dramatic fashion, to replace the law when they had majorities in both chambers in 2017.
“It helps magnify, or underscore, the fact that Republicans have no ideas on healthcare, and haven’t since we passed the Affordable Care Act,” Budget Committee Chairman John Yarmuth, a Kentucky Democrat, said of the Obamacare lawsuit. “In eight years in the majority and they never came up with an alternative. Now if they are successful, they will also not have an alternative. We need to keep pushing that point: They can’t be trusted on healthcare.”
Democrats say they intend to campaign hard against Republicans for trying to undo the healthcare law. While Republicans, for years, had success running against Obamacare generally, Democrats have in the past few years realized that voters view the individual parts of the law favorably and that defending those provisions, especially the protections for people with pre-existing conditions, is advantageous.
During the midterm election, attack ads focused on healthcare cost Republican Dean Heller his seat in Nevada and helped Democrat Joe Manchin keep his in West Virginia.
As much as the issue of healthcare was a liability for the GOP in 2018, though, it would be much more so if tens of millions of people suddenly saw their coverage taken away.
“If it succeeds, as many Republicans hope it does, all we are going to be talking about here is healthcare,” Chris Murphy, a Democrat from Connecticut, said recently on the Senate floor. “We will overnight be consumed by this topic.”
Voters trust Democrats more than Republicans to keep the costs of healthcare low, according to a recent Morning Consult poll, and healthcare consistently ranks among the top issues voters care about. At each turn, Democrats see opportunities to use Obamacare as ammunition.
“We are talking about healthcare every week, because that’s where the voters are,” said a top Democratic strategist.
Republicans have responded to the attacks by trying to cover their bases to show they are committed to popular parts of the law, such as protections for pre-existing illnesses. Twenty-four Senate Republicans support a bill written by Sen. Thom Tillis of North Carolina, one of the most vulnerable Republicans, to prohibit insurers from denying sick patients coverage or charging them more. A similar House bill exists, and Democrats blasted both as falling short of Obamacare. Tillis responded to the criticism by saying Democrats could work with him to build off the legislation.
“I haven’t found any sincere attempt to actually bridge the gap on the part of any member of the other party,” he said.
The administration hasn’t presented an alternative if Obamacare were to be struck down, despite Trump’s declaration in March that Republicans would be “the party of healthcare.” A group of 100 conservatives has been working on updating a proposal that they hope Republicans and the White House will consider, but there is no guarantee that they will get buy-in from the GOP.
When asked about the timeline and the details, the White House pointed to other aspects of the healthcare system the administration is addressing, including by issuing an executive order to have medical providers make their prices public. The Trump campaign also has credited the president for the leveling-off of premiums in the Obamacare marketplaces, and touted the alternatives the administration provided for people who have been priced out of Obamacare.
And the administration has had success in highlighting the reality that, despite Obamacare’s prohibitions against insurers turning away sick people, millions of people can’t afford the premiums and choose to go uninsured, putting protections out of reach. While some of the Trump alternatives don’t offer pre-existing illness coverage, agency officials have framed them as better than nothing.
But more often than not, the Republican counter-punch has been to redirect the message to attack Democratic proposals. They are helped along by the fact that Democrats aren’t just gunning to protect Obamacare, but seeking to increase government involvement in healthcare. For some, that means letting more people buy into a government plan, while others, such as Bernie Sanders, would kill private insurance in favor of a single, government plan dubbed “Medicare for all.”
Taking the lead from Trump, Republicans have argued that Democrats, by endorsing “Medicare for all,” also want to replace Obamacare.
“The Democrats don’t even like Obamacare,” said Sen. Rick Scott of Florida. “They’re all running on ‘Medicare for all.’ They have already thrown Obamacare under the bus and they want everybody moved to a government plan.”
Kevin Brady of Texas, the top Republican on the House Ways and Means Committee, warned that government healthcare would be worse than striking Obamacare.
“We believe protections for pre-existing conditions should be the law of the land, period,” he said. “We also, though, are very worried about the 170 million Americans who Democrats will seize and cancel their health insurance plans through ‘Medicare for all.’ That would be even more damaging.”
Republicans also have seized on support among presidential candidates for extending the government healthcare to people living in the U.S. illegally to attack Democrats. One GOP strategist said Republicans now had a clear alternative to run against and called Democratic plans “far outside the mainstream.”
“[The lawsuit] does force the conversation on healthcare, which Republicans are willing to discuss given what Democrats are proposing,” the strategist said.
Democratic infighting is compounding Republican attacks. Speaker Nancy Pelosi and centrists are clashing with progressives by focusing on expanding Obamacare, as opposed to backing “Medicare for all.” Nearly all top-polling Democratic presidential candidates support the Medicare for All Act, with the exception of Joe Biden, who has cast the bill as “getting rid of Obamacare.”
Democrats, for their part, said they see the disagreements as merely an attempt to build off Obamacare.
“We are going to have a good debate about the right approach to continue improving things, but there is no way Republicans can untie the anchor around their ankle that is the lawsuit which overturns a healthcare law to begin with,” Ferguson said.
Andy Slavitt, who was in the Obama administration and has been defending Obamacare, said the primary was about candidates drawing distinctions among each other, but noted the general election would be different.
“At the end of the day, that’s not the contrast they’re going to face,” Slavitt said of the choice before voters.
