Congress returns to work today, and for the first time since the Affordable Care Act was signed, Republicans are in the majority. It’s no secret that the GOP dislikes the law. In the nearly five years since the passage of President Obama’s signature healthcare reform, House Republicans have voted to defund the law more than 50 times. This fall, GOP leaders Mitch McConnell and John Boehner renewed their commitment to repeal the ACA.

With Republicans calling the shots in Congress, could the ACA be in serious danger? Could legal challenges, including a pending Supreme Court case strip millions of coverage? To get answers, Transmission reached out to Michael Sparer, PhD, JD, chair of the Mailman School's department of Health Policy and Management, and longtime observer of the political and legal football around the law.

What is the Republican critique of the ACA?

The Republicans argue that the ACA represents too much government regulation of healthcare markets. They point to mandates that individuals must have health insurance and employers of a certain size must provide it, as well as regulation of the insurance industry and new taxes. These, they say, are an unwarranted intrusion into the private sector healthcare system.



Can the new Congress repeal the law?

The House of Representatives in very symbolic form has voted time after time to repeal the law. But the law is not in jeopardy in that sense, even with the new Congress. Republicans know that President Obama would veto any effort to fully repeal the law. Also, millions of people now benefiting from the law and many Republicans would be hesitant to pull the plug. These days, the most important challenges to the ACA are taking place in the courts and in the states.

What issues are now before the courts?

There are several, but probably the most important is a case being considered by the Supreme Court on the issue of subsidies. The background is that the ACA encourages states to create insurance exchanges so people can shop for low-cost private coverage. The law also provides federal subsidies to persons below a certain income who buy through the exchange. Turns out, however, that only 16 states decided to create such an exchange, which meant that the feds had to do so for the rest of the country. In the lawsuit I mentioned, the challengers argue that federal subsidies are available only to persons who buy through one of the 16 state-based exchanges. The government argues that the clear intent of the law is to provide subsidies to buyers in all of the exchanges, including the federal one.

Odds are the Supreme Court will agree with the latter interpretation. But it could go the other way since on this issue the ACA is poorly drafted. I was surprised by the Court’s 2012 decision that struck down the requirement that all states expand their Medicaid program and I could be surprised again.

What happens if the subsidies for federal exchanges are struck down? Could the ACA survive?

Two-thirds of the states have federal exchanges and about 85 percent of people who buy insurance through these exchanges are eligible for subsides. If the Supreme Court rules against subsidies, it will be a major blow to the ACA. Millions of people might lose their health insurance because they lose their subsidies and will no longer be able to afford health insurance.

There would be a major scramble in a number of states to avoid the devastating implication of the decision. Politically, it’s one thing to oppose the granting of a new benefit to a population. It’s much more risky to have given people health insurance to people and then take it away.

The ACA is almost five years old now. Will the GOP ever move on?

As more people have gotten coverage, the fervor of the opposition to the ACA has receded. It will recede more over time. The longer a law is in place, the more entrenched it becomes, and the more difficult it will be to maintain strong opposition to it. Ten million people have health insurance now who didn’t have it previously and that number will rise significantly in 2015. And that’s a very good thing.