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Could Healthcare Reform Be Repealed?

Opponents turn to courts and revisions in Congress

By David Linney | 04.25.2011
Originally Published April 2011

Repealing the 2010 healthcare reform law is on the agenda of many of the Republican and Tea Party representatives who won seats in Congress in the November 2010 election. While some pieces of the new law took effect last year, most will be phased in over the next four years. The most significant changes take place in 2014. 

Opponents of the law criticize its high cost and increased government involvement in healthcare. In particular, they disagree with the big changes that will take effect in 2014, which include:

  • Most individuals will be required to obtain health insurance or will have to pay a penalty.
  • Businesses with 50 or more employees will be required to provide health insurance for their workers or pay a penalty.
  • States will be required to create health insurance exchanges to offer more affordable insurance plans to individuals and small businesses.
  • Childless adults with incomes below 130% of the federal poverty level will become eligible for Medicaid.

Legislative Challenge

On January 19, 2011, the Republican-controlled US House of Representatives voted to repeal the Patient Protection and Affordable Care Act. However, the law cannot be overturned without a vote to repeal by the Democratic-controlled Senate, which is unlikely, and the signature of President Obama, who has promised to veto the repeal. If the Senate were to vote to repeal the law and the president were to veto it, then the House and Senate would need to override the veto by a two-thirds vote, also unlikely. For these reasons, many political observers believe repeal of the law will not happen soon. However, revisions could occur.

Judicial Challenge

As of April 2011, when HemAware went to press, 27 states had filed lawsuits challenging the constitutionality of the portion of the law that requires all individuals to purchase health insurance. They argue this part of the law exceeds the authority granted to Congress under the Commerce Clause in the US Constitution to regulate interstate commerce.

Opponents of the law argue that insurance has traditionally not been considered commerce, pointing to the fact that insurance contracts are often regulated by the states and that insurers are prohibited from selling policies to individuals across state lines. Further, opponents of the law argue the clause does not allow Congress to regulate “inactivity”—in this case, not having insurance.

On the other hand, supporters of the law argue that the Supreme Court has widely allowed Congress to “regulate and prohibit” various interstate activities that go beyond commerce. The requirement for most individuals to buy insurance, they argue, is necessary in helping Americans afford coverage and preventing discrimination against people with pre-existing conditions.

So far, four cases have been heard by federal judges in Virginia, Florida and Michigan. Judges in Michigan and Virginia upheld the law. Another judge in Virginia ruled the insurance requirement unconstitutional, and a Florida judge ruled the entire law unconstitutional, based on the insurance requirement.

More court challenges and appeals are expected, so the constitutionality issue may ultimately be decided by the US Supreme Court.

The Importance of Advocacy

House Republicans will now likely try to impede some aspects of the law’s implementation through oversight of new programs and funding, according to Ellen Riker, the National Hemophilia Foundation’s Washington senior policy adviser. “Even though most of the law’s coverage provisions are in a bit of a holding pattern until 2014, with the federal elections in 2012 and ongoing judicial challenges, advocacy will be critical for the bleeding disorders community,” Riker says.

Your legislators need to hear from you about the benefits of the law for people with bleeding disorders. Key points you can make with your representatives include:

  • The elimination of pre-existing condition exclusions allows access to insurance and removes a barrier preventing many from seeking work and being productive, tax-paying citizens.
  • The elimination of annual and lifetime limits removes the possibility that coverage for critical medical care will end.
  • The provisions taking effect in 2014 will allow uninsured Americans, including many with bleeding disorders and other chronic conditions, to get the coverage they need.

Healthcare reform will be a top issue over the next several years. Therefore, it remains important that the bleeding disorders com­munity continues its advocacy efforts. (See Washington Days 2011 recap.)