LIKE WEEDS and superheroes, the Affordable Care Act (ACA) is hard to kill. Since storming Congress in 2010, Republicans have tried their darndest to take down the ACA, better known as Obamacare, only to find themselves stymied by internal divisions over what would replace it. On December 14th a federal judge in Texas dealt the law what many in the party hope will be a fatal blow. But as green-fingered hobbyists and the Green Goblin know in equal measure, it is unlikely to be so simple.
The issue is over a legal technicality known as severability: what happens to a law if part of it is found to be unconstitutional or unenforceable. As originally passed, the ACA included a requirement for all Americans to obtain health insurance or pay a penalty, known as the individual mandate. When the Supreme Court was asked to weigh in on the law’s constitutionality in 2012, it held that this was a legitimate exercise of Congress’s power to tax. But as part of their tax-cut bill in 2017, Republicans reduced this penalty to zero, killing the individual mandate. Republican officials from 20 states then sued the federal government, arguing that without the mandate, the entire law, based as it was on Congress’s taxing powers, should be struck down as unconstitutional.
For many constitutional-law experts—including libertarian ones who do not much like Obamacare—this argument was frivolous. Reed O’Connor, a federal judge appointed by George W. Bush, took it seriously. He wrote that “because rewriting the ACA without its ‘essential’ feature is beyond the power” of his court, the individual mandate was inseparable from the rest of the law—all of which would need to be dismantled. The Department of Justice declined to defend the law, leaving the task to Democratic state attorneys-general. They are sure to appeal; until these efforts are exhausted the law will remain in force.
If the ruling were to stand, the consequences would be disastrous. When the Supreme Court considered the law, Obamacare was not yet fully in effect. Today, it is embedded in American society. Compulsory coverage of people with pre-existing conditions would disappear. Young adults counting on remaining on their parents’ insurance until the age of 26 would suddenly find themselves without health care. Expansion of Medicaid, the government health-insurance programme for the poor, would be undone overnight. At least 15m who gained coverage would lose it.
States like Ohio and Kentucky that are heavily reliant on Medicaid dollars to pay for counselling and treatment for those addicted to opioids would also be dealt a blow. Since Obamacare went into effect, the share of Americans without health insurance has dropped from 16.8% to 10.2%; the decline was even steeper in states that chose to expand their Medicaid programmes. Without the ACA—and with a sensible replacement unlikely to pass through a divided Congress—this progress would reverse.
An appeals court is likely to overturn Judge O’Connor’s ruling. Even for Republicans, that would probably be the best outcome. In the recent mid-term elections the party was pummelled by voters nervous about health-care costs and the possible evaporation of protections for people with pre-existing conditions. Having just demolished those protections, Republicans would struggle to run as the party defending people with such conditions.
Americans have a conflicted relationship with facts at the moment. But even the most partisan voters might recoil at such up-is-downism.