9-lives Obamacare survives zombie repeal

An attempt to repeal the Affordable Care Act failed, but continued vigilance is required, since zombies don't easily die, and Congress could try again.

The Affordable Care Act (ACA), also known as Obamacare, has been compared to the cat with nine lives. It survived dozens of court challenges, three of which made it to the Supreme Court; the meltdown of its website during its initial 2013 launch; and the failure of many states to assist in its implementation by setting up their own exchanges, promoting enrollment, and expanding Medicaid. More people would be covered today if their states lent a hand. Still, the ACA survived and millions gained coverage.

Yet many expected that the election of Donald Trump as president and continued Republican control of Congress would be the end of Obamacare. Delivering on repeal, though, has turned out to be much harder than promising it. The GOP Congress keeps bringing ACA repeal legislation forward only to see it fail, then tries again only to fail once more. Washington insiders refer to the ACA repeal effort as “zombie legislation”: Each time repeal seemingly has died for good, it comes back.

On March 7, House Republicans unveiled their repeal plan, called the American Health Care Act (AHCA); less than three weeks later, Speaker Paul Ryan pulled the bill because of lack of support. Even though the news media widely reported that this was the end of repeal, behind-the-scenes negotiations led to passage of a revised AHCA bill on May 4 by a 217-213 vote. Senate leadership quickly declared that rather than taking up the unpopular House bill, the Senate would come up with a better one.

On June 22, the Senate's version of repeal and replace, called the Better Care Reconciliation Act (BCRA), was unveiled. It included many of the same unpopular policies as the AHCA: capping and cutting Medicaid and phasing out federal funding for its expansion; allowing insurers to waive coverage of preexisting conditions or charge more for them; allowing insurers to opt out of providing essential benefits; and enacting an insufficient tax credit subsidy program that would increase deductibles and premiums for older, poorer, and sicker people. When it became evident that four Republican Senators were prepared to vote against the bill, denying it a majority, Majority Leader Mitch McConnell on July 17 pulled it from consideration. The next day the Wall Street Journal led off with a five-banner headline, “GOP Stares Down Loss on Health,” one of many media outlets reporting that this likely was the end of the line for repeal.

Yet two days later, Senator McConnell announced he would proceed with a vote to start debate on the House-passed AHCA, which could then be amended by substituting the Senate's own approach du jour (no one really knew what the Senate would be voting on—a revised version of BCRA, or ACA repeal over two years without a replacement, or something else). On July 25, the Senate, on 51-50 vote with Vice President Mike Pence casting the tiebreaker, agreed to begin debate, with just two Republicans, Maine's Susan Collins and Alaska's Lisa Murkowski, voting against proceeding.

Over the next 48 hours, the Senate demonstrated it was no closer to consensus. It voted down another iteration of BCRA, 43-57, and then repeal without replacement, 45-55. In a last-ditch effort to get something, anything that could win 51 votes, Senator McConnell offered a vote on “skinny repeal,” which would repeal only the ACA's individual and employer mandates and its tax on medical devices, with a promise that once it passed, the Senate would then negotiate with the House on a better bill. Yet in a moment of high drama in the wee hours of the morning on July 28, this too failed by a vote of 49-51, with Senator John McCain (R-AZ) joining Senators Collins and Murkowski to defeat skinny repeal, just days after he was diagnosed with brain cancer. Senator McConnell then declared it was time for the Senate to move on to other business. In subsequent days, many senators declared that the only way to move forward was on a bipartisan bill to improve, not repeal, Obamacare.

If the July 28 vote is truly the end of repeal, the medical profession's steadfast opposition plays a large part. ACP, in particular, helped form and lead an anti-repeal coalition with five sister medical organizations (American Academy of Family Physicians, American Congress of Obstetrics and Gynecology, American Academy of Pediatrics, American Osteopathic Association, and American Psychiatric Association), which collectively represent over 560,000 physician and medical student members. On our own and collectively, the College launched an unprecedented effort to influence Congress with letters, press events, Hill visits, expert analysis, social media, and grassroots advocacy. I am proud of ACP's leadership.

Most important, it was the internal contradictions in the Republicans' plans, combined with the millions of people who besieged members of Congress to not take their coverage away, that made the difference. I wrote in Annals of Internal Medicine on Jan. 17:

“It may be magical thinking to believe that one can repeal the ACA, delay the repeal from going into effect, avoid loss of coverage, and then replace the ACA with something that keeps the popular parts while jettisoning the unpopular ones. However, I have no doubt that the Trump administration and the Republican congressional leadership will try.

“Yet, as we speculate, it is essential not to lose sight of who the changes will most affect. Despite its flaws, the ACA has achieved a historic reduction in the number of uninsured persons in the United States, with more than 9 out of 10 Americans having coverage and 22 million and counting getting their coverage from the ACA. Those who will be most affected by repeal include working-class people, women who are concerned about loss of coverage for contraception, and entrepreneurs with medical conditions who fear they will have to give up their start-ups for jobs that offer coverage—not to mention the many more people with preexisting conditions who may again find themselves turned away by insurers. Elections have consequences. The consequences of ACA repeal are direct, real, and personal for many, and their voices need to be heard.”

I was hopeful then, but far from confident, that Congress would hear their voices. But because they were heard, loudly and clearly, ACA repeal failed, maybe for good. Yet continued vigilance is required, since zombies don't easily die, and Congress could again try to bring back repeal. Accordingly, doctors and patients alike must persist in reminding Congress that the consequences of repeal are direct, real, and personal for many, and their voices must continue to be heard.