Why the GOP’s latest court win against Obamacare is a losing battle

The words of former Sen. Max Baucus have come back to haunt. As the health law was winding its way through Baucus’s Senate Finance Committee in 2009, the then- senator from Montana struggled to get Republican support for the bill. It was tough, and he worried that without the GOP’s blessing, his bill — should it become law — might not be permanent. At the time I didn’t understand what Baucus meant. Like many others, I underestimated the fierce Republican backlash now culminating with Friday’s Texas court decision that has the potential to wipe out the law once and for all.

A district court in Texas ruled that the entire law is unconstitutional. The ruling not only does away with the individual mandate — the requirement to buy health insurance — it kills all the other provisions of the law, including those so-called consumer protections such as lifetime caps on catastrophic expenses and allowing young adults to remain on their parents’ health insurance policies until they are 26. It wipes out insurance for poor people who got coverage under their state’s Medicaid expansions, eliminates the essential benefits in insurance policies (coverage for maternity and mental health care and prescription drugs, for example) and it eliminates the fiscal steps taken to extend the life of the Medicare trust fund.

In short, if the entire law is eventually struck down, the U.S. health insurance market would return to the bad old days before 2010, when people with preexisting health conditions were frozen out of the market. 

U.S. District Court Judge Reed O’Connor’s sweeping decision is headed for the appellate courts and possibly the Supreme Court, which may once again decide whether Obamacare will remain the law of the land. So far, there has been no shortage of opinions about the outcome, as Vox’s Sarah Kliff has pointed out. The legal pundits have been out in full force: “Depending on which news source you turn to, this nascent challenge to the Affordable Care Act is either dead in its tracks — certain to die on appeal — or a shoo-in for yet another Supreme Court case,” Kliff wrote this week.

University of Michigan law professor Nicholas Bagley wrote in The Washington Post, “The Fifth Circuit is unlikely to take this frivolous case seriously, and the case will die without the Supreme Court having to intervene.” The New York Times’ Abby Goodnough and Robert Pear opined that the lawsuit “will almost certainly make its way to the Supreme Court, threatening the survival of the landmark health law and, with it, health coverage for millions of Americans, protections for people with pre-existing conditions and much more.” Timothy Jost, Washington and Lee law professor emeritus, weighed in on The Commonwealth Fund blog: “The logic of Judge O’Connor’s decision is simple and straightforward, but clearly wrong,” he wrote. 

I’m no expert in legal matters, but I’ve always believed that the continuing fight over the law was a tactic used by conservatives to push the country’s thinking about health insurance much further to the right. Was the long-term goal of Obamacare opponents to prevent the enactment of a more inclusive national system?

Kliff also entertained the thought that the final ruling might surprise, much like the 2012 Supreme Court decision that gave the states the option of not expanding Medicaid to cover more low-income people. In the years since, the struggle to expand Medicaid coverage to the poorest Americans has been painfully difficult and the battle is far from over, as we’ve seen with work requirements in Arkansas and other states.

I’m no expert in legal matters, but I’ve always believed that the continuing fight over the law was a tactic used by conservatives to push the country’s thinking about health insurance much further to the right. Was the long-term goal of Obamacare opponents to prevent the enactment of a more inclusive national system? Indeed, the ongoing fight in Idaho over Medicaid expansion has been framed in such terms. The conservative Freedom Foundation has legally challenged the state’s November referendum, which brought Medicaid expansion to the state. Fred Birnbaum, the group’s vice president, told Politico that if other states expand Medicaid, “it will be harder for Congress to reverse that. I think that it’s going to put us on a path to a single-payer system. I think we’re at a fork in the road.”

In its editorial denouncing the Texas decision, The Wall Street Journal editorial board offered a similar take, casting the ACA as a mere stepping-stone to nationalized health care. “No one opposes Obamacare more than we do, and Democrats are now confirming that it was designed as a way-station to government-run health care. But a federal judge’s ruling Friday that the law is unconstitutional is likely to be overturned on appeal and may boomerang politically on Republicans.” 

If that was the GOP strategy, it might backfire long before the courts have the last word. I talked to T.R. Reid, former Washington Post reporter and author of “The Healing of America,” which detailed the health systems of five countries. Reid took off his reporter’s hat in 2016 to work with advocates in Colorado on their failed campaign to bring a single-payer system to the state. Two years ago, Reid told me that when he spoke to audiences, about half were for some kind of national system; half were against. Now, he says, a change occurred after Congress failed to repeal and replace Obamacare. “More than 50 percent now say some kind of government insurance is necessary.”  

On Tuesday, Politico’s Alice Miranda Ollstein quoted Sen. Jerry Moran, a Republican from Kansas, saying he did not intend to kill all of Obamacare when he voted to repeal the individual mandate last year. (Recall that Congress repealed the mandate as part of the Republican tax bill passed a year ago.) Moran, who has taken a lot of flak from constituents last year over his position on the health law, said, “This was not an outcome I predicted.”

And so the saga of Obamacare goes on, but even if the courts ultimately invalidate the law, it has shown millions of Americans the benefits of health insurance and what a more humane system can look like. There will be no turning back.

Veteran health care journalist Trudy Lieberman is a contributing editor at the Center for Health Journalism Digital and a regular contributor to the Remaking Health Care blog.