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If Health Care Reform Unravels

Critics want to scuttle the new law. What happens if they succeed?

Steel chain held together with red string

— Pier/Getty Images

President Obama and Democratic leaders claimed victory in March when the new health care law was enacted. But the bitter partisan and ideological war is far from over, and ongoing battles threaten to undermine it.

Twenty-one states are challenging the law in court on constitutional grounds. Voters in at least three other states are weighing ballot initiatives opposing it. And "repeal" has become the rallying cry of Republicans going into the midterm elections. Minority Leader John Boehner, R-Ohio, has made it clear that if his party takes control of the House in November, "repealing this bill has to be our number one priority."

The Republican leadership's new agenda, "A Pledge to America," announced yesterday, also calls for the law to be repealed and replaced with a scaled-down list of provisions. These include medical malpractice reform and expanding health savings accounts.

Where is the law vulnerable and could it be overturned? If so, what would be the consequences for the country and individual Americans?

Political analysts agree that repeal is not realistic while Obama remains in the White House to wield his veto, even if the GOP wins both the House and Senate. But they say that with only a slim majority in the House, Republicans could still throw enough sand in the gears to make the law virtually unworkable before its main provisions go into effect.

"They could make a mess out of what will already be a very difficult implementation process," says Robert Reischauer, president of the Urban Institute, a public policy group. "There's a lot of potential for not just mischief but really serious undermining of the intent and hope for improving our health care system."

Even with a majority of just one seat in the House, Republicans would take control of key committees and the parliamentary agenda. That would give them tactical weapons for slowing down the process, says Norman Ornstein, a congressional politics expert at the American Enterprise Institute. They could hold hearings and "issue dozens of subpoenas" to administration officials whose task is to implement the law, "which would be a huge distraction."

"But the most effective thing they could do," Ornstein adds, "is try to use the appropriations process to cut funding" for implementing major provisions of the law — a budgetary move that would not need a two-thirds majority to overcome Obama's veto.

Even with a narrow victory in November, "they can cripple the program by cutting funding before it even gets off the ground," says John Rother, AARP's executive vice president. Twin concerns for the cost of the program and the nation's budget deficit prompted a cut-the-funding strategy. It was suggested by Boehner and Sen. John McCain, R-Ariz., soon after the law was passed and seems to be gaining traction. By early September, more than 150 Republican candidates had pledged support for cutting funding, according to the conservative website DeFundit.org.

Although the law is laden with provisions, it is rooted in two main changes that are due to begin in 2014: Everybody must have health insurance or pay a fine — a requirement known as the "individual mandate." And state-based insurance exchanges will be set up to act as conduits for offering private coverage options for people lacking insurance from employers or government programs, with subsidies to help those with low to middle incomes.

If the legal challenges from the states succeed and the individual mandate is eliminated, all the most popular new benefits and consumer protections of the law could evaporate — from guaranteed coverage for people with preexisting conditions to the ban on lifetime coverage limits. These benefits and protections depend on having healthy people, as well as the sick, buying insurance to spread the risk and reduce costs.

For the same reason, new federally required benefits like free preventive care and limits on out-of-pocket expenses would not be possible. Coverage through the exchanges would be more expensive, and subsidies, if available at all, less generous. If funding were significantly cut, it would be difficult to even establish exchanges.

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