Like a healthy body, a complex federal legislative scheme needs nurturing. Obamacare was starved to death by its legal guardians - the U.S. Congress - the same caretakers who now have the audacity to argue that the law has collapsed of its own weight. That's like refusing to feed a newborn and then saying it died because it was sick. You can bet that if a Republican replacement bill ever passes, this Congress will give it a lot more care and a chance to actually succeed.
Let's be clear. Obamacare was not perfect. But how could we expect a federal law so complex, affecting one-fifth of our economy, to be perfect from the get-go? Congress never gave it a chance, or even a tweak, to help it work. The amount of legal and political sabotage incessantly directed at the Affordable Care Act appears to be unprecedented in modern American history.
Political opponents filed a lawsuit the very day the statute was enacted, arguing that the insurance purchase requirement - which President Barack Obama modeled on Republican Gov. Mitt Romney's Massachusetts health reform - was unconstitutional. Republicans then turned the state-based implementation of the statute into a political football, proclaiming that any governor who implemented a state exchange or expanded Medicaid was a traitor; never mind that the idea of resting the exchanges in the states in the first place came from Senate conservatives (or that nearly a dozen Republican governors eventually had the courage to say that the Medicaid expansion was in their states' best interests and did it anyway).
When the Supreme Court, in 2012, refused to strike the statute down, the opponents didn't stop there. The charge to their allies, which came from a high-profile 2010 meeting at the American Enterprise Institute, was to adopt a strategy designed to "exploit" "bits and pieces" of the law, calling it a "bastard [that] has to be killed as a matter of political hygiene." That birthed the second Supreme Court case, one that attempted to take advantage of four sloppily drafted words in the 2,000-page law to argue - impossibly - that Congress never intended for the subsidies essential for all the ACA's insurance reforms function to apply to the federal insurance exchanges. The Supreme Court quashed that suit too, in a definitive 6-3 smack-down, but not before the uncertainty caused by the suit prevented a smooth implementation.
The opponents didn't stop there. Next, they took aim at the "three R's" - the provisions of the statute on risk adjustment, reinsurance, and risk corridors. Simplified, those crucial provisions gave transitional financial relief to the insurance industry to stabilize the market and insurance premiums as the ACA began implementation. Congress never gave these a chance either. Instead, in 2013 it let Sen. Marco Rubio (R., Fla.) brand them an insurance "bailout" and then passed laws preventing the appropriation of some of this critical funding. Never mind that a federal court has now held that the government must pay the contractually obligated amount regardless, Rubio's law notwithstanding. The damage was done.
What's more, the House then brought a high-profile lawsuit arguing that another critical part of the ACA's funding - the "cost sharing subsidies," payments to insurers so they can charge individuals lower premiums - had not been properly appropriated. And that's not even to mention countless other suits aimed to chip away at the statute, from challenges to its birth-control provisions, to its legislative process, to its implementation of the employer insurance mandate.
As noted, the statute wasn't perfect. The insurance subsidy amounts were set too low in the law as drafted; a normal, responsible Congress would have stepped in to change that. Obama made his own mistakes, too. For example, many believe that the Department of Health and Human Services' generous interpretation of the ACA's grandfathering provisions narrowed the insurance markets in ways that contributed to premium increases.
Even with this strangulation, however, the ACA has had some enormous successes. Not only have 20 million more Americans been given access to health care, but health costs are way down and data on positive health outcomes are starting to come in. Indeed, the best testament to the ACA's success is the fact that all of the proposed Republican plans keep its basic structure - requiring insurers to cover everyone at roughly equal prices, continuing support for Medicaid, and largely leaving many of the ACA's less controversial provisions in place.
If there is any great weakness in the ACA, it is its overreliance on the insurance markets as the primary means of expanding health access. That makes the statute extremely vulnerable to the insurance industry and its politics. But that is a Republican preference. It's a way to keep health care at least somewhat in the private sector, rather than federalizing the entire insurance scheme into a national version of Medicare for all. The part of the ACA that House Speaker Paul Ryan (R., Wis.) claims is "collapsing under its own weight" are these same insurance provisions; and they are collapsing because Congress double-crossed the insurance industry for political gain.
And here's the kicker. The very first proposed regulation released by the Trump HHS aims to stabilize the very insurance markets that Congress and the ACA's opponents spent the last seven years trying to undermine. President Trump met with top insurance CEOs last week to continue that effort. And of course, the Trump administration and the House of Representatives have decided to put the House's cost-sharing-subsidy lawsuit on hold. Because if the House gets what it wants, it will further destabilize the insurance markets - and that no longer seems such a good idea now that a Republican is responsible for the ACA.
Trump has called Obamacare a "disaster" more times than one can count, and recently said, "Dems are to blame for the mess." Let's be clear about who is accountable. Considering how much the ACA has accomplished, just think what it could have done had our Republican-controlled Congress bothered to actually support it.
Abbe R. Gluck is professor of law and faculty director of the Solomon Center for Health Law and Policy, Yale Law School.
IF YOU GO
Josh Blackman, Abbe R. Gluck, and Julie Rovner, "The Future of the Affordable Care Act" at 6:30 p.m. Monday, National Constitution Center.
To register: Visit constitutioncenter.org/debate or call 215-409-6700.