The Supreme Court’s latest ruling moved the country’s debate over health policy into a new phase. Tough questions await both parties.
June 18, 2021
In 2012, after the first installment of what Justice Samuel A. Alito Jr. called the Supreme Court’s “epic Affordable Care Act trilogy,” congressional Republicans vowed to use every ounce of their legislative muscle to repeal the law on their own.
“Obamacare was bad policy yesterday; it’s bad policy today,” said Mitt Romney, then the presumptive Republican presidential nominee. “Obamacare was bad law yesterday; it’s bad law today.”
Three years later, after a second ruling in which the court declined to gut the law, Republican candidates were noisily outraged and quietly relieved. They could keep the law as a rhetorical device to stoke support but escape any political backlash from millions losing health insurance.
“Every G.O.P. candidate for the Republican nomination should know that this decision makes the 2016 election a referendum on the full repeal of Obamacare,” said Senator Ted Cruz of Texas, one of more than a dozen Republicans running for president at the time.
And this week, after the court ruled with its largest margin yet to uphold the law, Republicans met the decision with an entirely different message: Get over it.
“I think three times the Supreme Court’s upheld the Affordable Care Act, and I think we need to move on,” said Senator John Cornyn, whose home state, Texas, led the lawsuit.
For six election cycles, Republicans and Democrats have wielded the health care law as a political cudgel, battering their opponents over an issue that consistently topped the list of concerns for American voters. But now, after more than 70 efforts to repeal or modify the law in Congress, three Supreme Court rulings and nearly a dozen years, Republicans may have finally run out of firepower.
The closest Republicans came to dismantling major parts of the law came in 2017, when legislation passed the House but crashed in the Senate after Senator John McCain flashed a famous thumb-down during the vote on the floor.
That failure to overturn the law after Republicans had gained control of Washington altered the political dynamics of the issue, reflecting growing support for a health care system that had become deeply embedded in American life.
Republicans lost the 2018 midterm elections after Democrats flipped their strategy from deflecting attacks on the law to defending its most popular provisions. A year later, supporting an expansion of Medicaid, a signature piece of the law, helped Democrats win governors’ races in deep-red Louisiana and Kentucky.
“Hopefully, this will be the end of the line,” said Brad Woodhouse, the executive director of the liberal group Protect Our Care and one of many Democrats who took a victory lap after the Supreme Court’s ruling on Thursday. “If Republicans continue to do this, they are likely to continue to lose elections on this issue.”
The changed politics reflect a policy that has become part of the American social fabric. As of this month, a record 31 million people receive insurance through its plans. And nearly every American is touched by programs mandating things like calorie counts on menus, expanded services for disabled people, free breast pumps for nursing mothers and a host of other benefits.
Last year, the law became more popular than ever, with 55 percent of people expressing a positive view of it — the highest rating since the Kaiser Family Foundation began tracking opinions of the act in 2010. More than 70 percent of Americans and 67 percent of Republicans believe it is important that popular provisions protecting Americans with pre-existing conditions remain in place.
This kind of deep rooting in American life is exactly the outcome many Republicans feared after the law was passed. Ever since President Franklin D. Roosevelt’s New Deal during the Great Depression, lawmakers have rarely shown the ability or the will to pare back major entitlements — the term for government assistance programs that are open to all who qualify and are not subject to annual budget constraints. After periods of bitter political controversy, Social Security, Medicare and Medicaid all became widely accepted — and popular with voters.
Although the court, in its latest ruling, rejected the plaintiffs’ claims based on legal standing, not substance, some scholars believe that the conservative majority on the Supreme Court was sending a message about future constitutional challenges to the law.
“You have to look at that increased support and say that the court is making clear that the time for legal challenges to the Affordable Care Act is over,” said Andrew J. Pincus, a partner at Mayer Brown and experienced Supreme Court litigator, pointing to the 7-to-2 ruling in the case.
For Republicans, there’s reason to expect Obamacare to linger as a kind of zombie issue, used by conservative politicians to rally the base with little actual expectation of eliminating the law. And in the dozen states that have refused to expand Medicaid, fights over the law will certainly continue. But other issues, like culture-war battles over race and transgender rights, have already supplanted health care as the party’s preferred red meat.
“I don’t know what the next step is” on health care, Representative Nancy Mace, a Republican from South Carolina, said in an interview on MSNBC. “I hope it’s not the end of the road.”
Yet the political battle over the future of the law could become more contentious for Democrats, who disagree on how to tackle problems like large deductibles, high premiums and the holdouts on Medicaid expansion.
In 2020, questions of how to build on the law dominated the Democratic Party primary race, which ended poorly for liberal politicians. Senator Elizabeth Warren’s campaign tanked after she was pressed on the details of her sweeping health care alternative. In a book released last month about her campaign, Ms. Warren largely attributed her defeat to her fumbling effort to explain how she would pay for her health care policies. Joseph R. Biden Jr., who argued for bolstering the health care law instead of scrapping private insurance, beat out Ms. Warren and several other more progressive rivals, including Senator Bernie Sanders.
Mr. Sanders, whose plan to nationalize American health care has long been a core part of his political message, welcomed the court’s decision this week but said it was not enough. As the chairman of the Senate Budget Committee, he’s pushing to lower the Medicare eligibility age from 65 to 60 and expand the range of health services the entitlement covers.
“We are the only major country, as you know, not to guarantee health care to all,” he said on Capitol Hill this week. “There are millions of older workers who would like to get Medicare who today can’t, which is why we’ve got to lower the age, and there are millions more walking around who cannot hear, can’t afford eyeglasses and dental.”
President Biden signaled little new interest in changing his position from the campaign.
“The Affordable Care Act remains the law of the land,” he said in a White House statement, adding that it was time to “move forward and keep building on this landmark law.”
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