Obamacare: On the ropes?

The second open enrollment period for the Affordable Care Act began on November 15, but it seems like Obamacare has been under attack forever. Republican lawsuits make their way through the courts, Democratic candidates run from President Obama's signature achievement, and Democratic Senators openly question it.  Here are 10 things to know about the current state of the Patient Protection and Affordable Care Act and the threats facing it.

1. As of April 2014 (after the first open enrollment period), approximately 15.2 million previously uninsured had gained health care insurance as a result of the ACA - either through the Marketplace or through the Medicaid and CHIP expansions. Daily Kos notes that a) the uninsured rate dropped more than 30 percent from September 2013 to September 2014; b) healthcare spending in the U.S. grew at a slower rate in 2013 than it had in 53 years; c) an estimated 50,000 lives were saved between 2010 (when ACA was passed) and 2013 because hospitals have been made safer.

2. The original ACA provided for an expansion of state Medicaid systems that would have made health care affordable for an additional 21.3 million Americans by 2022. The Supreme Court made that provision voluntary and, as of October 2014, 23 states had chosen not to expand Medicaid coverage. Nearly 4 million poor uninsured adults fell into the“coverage gap” that resulted from state decisions not to expand Medicaid, meaning their income is above current Medicaid eligibility but below the lower limit for Marketplace premium tax credits.  With Republican victories at the state level in the midterms, this denial of affordable medical care will continue.

3. SCOTUS will hear King vs. Burwell this term. This case, as well as its related brethren (Halbig vs. Burwell, Pruitt vs. Burwell, and Indiana vs. IRS), would deny subsidies to people who obtained their healthcare plan through the Federal exchange rather than through a state exchange. If successful, as many as 13 million people in 37 states could be affected, For many of these, healthcare would once again become unaffordable.

4. King vs. Burwell rests on what Think Progress calls a "glorified typo." If read in isolation, one line of the Affordable Care Act suggests that only “an Exchange established by the State” can offer subsidies to help people pay for health insurance in the exchange. Previous Supreme Court decisions have noted that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”

5.  With today's politicized Supreme Court, the outcome of King vs. Burwell will depend on Chief Justice Roberts. Once before, Roberts bucked conservative pressure when he sided with the court's liberals in determining the ACA to be constitutional. Will Roberts' concern for his legacy (or perhaps his conscience) let him do the right thing for the American people or will he cave to this political stunt and ignore previous Supreme Court rulings on the importance of context?

6.  Sen. Charles Schumer blamed the loss of the Senate and the general thumping of Democrats in the midterms on the timing of Obamare.  Perhaps the best response to Schumer came from Michael Hiltzik at the Los Angeles Times: "It's a startling admission of political spinelessness. Schumer gets the positive impact of the legislation wrong, he gets the politics of it wrong, and he displays a shocking ignorance of the problems facing the American middle class. The only good thing about his remarks is that they confirm how bad today's Democrats are at messaging."

7. The House GOP filed suit against President Obama on November 21. The lawsuit focuses on two points: (1) the administration's decision to delay the law's mandate that businesses with 50 or more workers provide comprehensive health benefits and (2) the requirement that insurers reduce the out-of-pocket expenses for lower-income customers with the government making "periodic and timely payments" to insurers to cover their costs. This suit is even more blatantly political than King vs. Burwell and stands less of a chance of success.  Still, as the LA Times opines in a November 24 editorial: "...it's worth noting how Republicans have sought to undermine and destabilize the Affordable Care Act by attacking the benefits it provides to Americans on the lowest economic rungs."

8. Retiring Sen. Tom Harkin, co-author of the ACA, now says that Democrats should have passed single payer healthcare when they had the chance in 2009.  By trying to address the concerns of three centrist Senators (Democrats Lincoln and Nelson and Independent Lieberman), the country ended up with a more complicated healthcare system. I agree with Sen. Harkin.  Single payer or public option healthcare would have been a better choice. Compromising did no good. The ACA passed the Senate without a single Republican vote and the complexity of the system has opened it to, as we have seen, unending lawsuits.

9. A GOP Senate can be counted on to try to dismantle the ACA in stages should both King vs. Burwell and the House GOP suit against Obama fail. The idea would be to gather enough Democratic votes to avoid a filibuster, or better, to override a Presidential veto. Based on discussions with health care experts and lobbyists, the New Republic lists these possible Republican actions:

(a) Repeal the individual mandate

(b) Repeal or modify the employer mandate

(c) Eliminate "risk corridors" (government reimbursement to insurers for some losses)

(d) Repeal the 2.3 percent medical device tax. Its primary purpose is to generate revenue to help subsidize healthcare costs for lower income people.

(e) Abolish the Individual Payment Advisory Board. IPAB is a board with the power to ratchet down what Medicare pays for goods and services.

(f) Introduce "copper plans" which would cover less (50%) of an individual's health care expenses than the current plan levels.

10. I'll close with commentary from a source I don't often cite. Forbes magazine, the self-proclaimed "capitalist tool," has some bad news for Obamacare bashers. A McKinsey Center report found that a) competition and choice are increasing among insurance companies; b) the median increase in premiums for 2015 will be 4% (Forbes' comment: "When was the last time we saw insurance premiums experience an annual increase of less than 5 percent? I cannot remember such a time and doubt that you can either."); c) premiums for those being subsidized will vary - with some likely to pay more and others likely to pay considerably less.  The author's closing advice is priceless: "Even if you are committed to bashing the ACA at all costs, do yourself a favor and go check out the policies available to you come November 15th. You are likely to find something to your liking at either a lower price or at a very small increase. Should you find such a policy, buy it and be secure in the knowledge that the next time you trash Obamacare nobody will have to know that you benefited personally from the program."