(BROOKLYN, New York): In a quixotic development triggered by a Texas judge’s recent ruling that the entire Affordable Care Act – commonly called Obamacare – is unconstitutional — all because of its individual mandate — Republicans may find themselves wishing for a different outcome.

However, there is little hope of a deal with Democrats on health reform in a divided Congress if the controversial and much criticized decision is upheld. Democrats will now use the 2020 presidential campaigns to paint Republicans as threatening a host of popular provisions in the ACA. And here’s the kicker: protections for pre-existing conditions, the provision that played such a big role in the recent national midterm elections that saw Democrats take by the US House of Representatives with a tally in excess of 40 seats, is not even the most popular one.

Here are just some of the more popular provisions that would be eliminated by the judge’s ruling — in order of their popularity, according to the Kaiser Family Foundation’s recent tracking poll (November 2018).

• Young adults can remain on their parents’ health insurance policies until age 26: 82% of the public supports this, including 66% of Republicans.

• Subsidies for lower and moderate income people: 81% support this, including 63% of Republicans.

• Closing the “donut hole” so there’s no gap in Medicare prescription drug coverage: 81% like this, as do 80% of Republicans.

• Eliminating costs for many preventive services: 79% support this, as do 68% of Republicans.

• Medicaid expansion: 77% like it, as do 55% of Republicans.

The list goes on, but notably, further down but still very popular: 65% of the public supports protecting people with pre-existing conditions, as do 70% of Democrats, 66% of independents and 58% of Republicans. The fact that the pre-existing conditions does not top the list shows how popular all of the other provisions are.

The bottom line: The Republican political world has changed, with Democrats preparing to take control of the House in January, and Republicans may have been better off settling for the repeal of the mandate penalty that Congress already passed. The mandate was by far the least popular part of the law and gave them something to crow about. Now, they may have bought more than they bargained for.


Now that federal Judge Reed O’Connor ruled that the entire Affordable Care Act is unconstitutional — since Congress zeroed out the penalty tied to the mandate to buy health insurance — the health care law once again has to show it has an extra life in its back pocket. If O’Connor’s ruling stands — or takes effect before an appeal — it would kick millions of people off of private insurance and millions more off of Medicaid, and would eliminate protections for people with pre-existing conditions.

And the ripple effects would go much, much further:

• The ACA created the FDA approval pathway for a class of cheaper prescription drugs known as biosimilars, developed the database that shines light on payments that drug and device companies make to doctors, reauthorized the Indian Health Service and required calorie counts on some restaurant menus.

• Even under the Trump administration, Medicare is relying on parts of the ACA, like the CMS Innovation Center to shift the health care system toward new payment models.

And in a strange development from those who previously vociferously attacked the ACA, this time, the knives are coming out from all sides to defend the ACA.

• Democratic attorneys general have vowed to appeal.

• Pretty much every trade group is befuddled by the decision. The American Medical Association blasted the ruling as “a stunning display of judicial activism.”

• Legal experts who have both opposed and supported the ACA almost uniformly agree the judge’s legal rationale is flawed or “indefensible.”

• The biggest problem is the ruling ignores a well-established legal principle that courts should be cautious about striking down an entire law because of a problem with one piece of it.

Look out for the 2020 US Presidential Elections when Democrats will make the case that they are the party that protects pre-existing conditions, while Republican messaging on the case — and more broadly, their health care platform — will be muddled at best.

• While there may be some push to have solutions ready to go if the ACA ultimately gets struck down, the idea that a divided Congress is going to be able to agree on something like that is laughable.

Action items. An appeal would go to the Fifth Circuit Court of Appeals, which is considered one of the more conservative appeals courts in the United States. If the Fifth Circuit agrees with this latest ruling, it’d be up to the Supreme Court to decide if it wants to hear the case. Still, we are still a long way from the Supreme Court intervening, and the ACA is still technically the law of the land while this plays out.


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