February 7, 2011
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Center for Healthcare Research & Transformation
Since the January 31 decision by the Florida court that struck down the entire Affordable Care Act as unconstitutional, there has been endless speculation about what the court ruling means and what will happen next. Some Attorneys General who were party to the lawsuit have asked for an expedited decision by the Supreme Court on the constitutionality of the law; others have argued that Judge Vinson’s decision in Florida gives the states all the rationale they need to suspend implementation of the law in its entirety. The Senate held a vote on February 2 on the Republican proposal to repeal the law and not surprisingly, the repeal vote lost, 47 to 51 (Republicans voted unanimously for repeal). What is lost in all this focus on the legal and political strategy (especially: the theatrics) around the Affordable Care Act is what American consumers, businesses, and health care entities are actually saying about the law.
The message from consumers is actually clearer and different from that often presented in the debates in Congress. Despite what some took as the message of the 2010 election, most in the public actually do not want to see the Act repealed per se. A Kaiser poll conducted in January noted that 43 percent want to repeal the law (more than half of those want to replace it with a Republican alternative) while 47 percent do not want it repealed (indeed, more than half of those actually want it made stronger than it is). An even larger percentage of those polled (62 percent) are opposed to defunding the law should it stay in place.
There are, however, components of the law that are unpopular, most notably, the individual mandate (with 76 percent holding an unfavorable view). But, other elements closely tied to the mandate (elimination of preexisting condition clauses, recisions and the like) are extremely popular. An example of that public view can be seen in New York Times coverage of the Florida decision, reporting on those fearful the ban on lifetime limits on health care coverage may go away.
The business view on the Affordable Care Act is particularly interesting. Some business groups have been quite vocal in their complete opposition to the Act. Most notably, the U.S. Chamber of Commerce and the National Federation of Independent Businesses (representing small businesses) have strongly supported repeal. Groups representing large businesses, however, have not. The Business Roundtable has not called for repeal. And, most notably, the National Business Coalition has actively opposed repeal. As quoted by David Wessel in the January 13 Wall Street Journal, Helen Darling, the Executive Director of the National Business Coalition on Health (and a former Republican staffer) notes that if businesses understood the Affordable Care Act, they would not support repeal. Indeed, her quote is quite powerful. She says, “I don’t think we’ll get a better solution in the U.S. in our lifetime. If it gets repealed, or gutted, we’ll have to start over and we’ll be worse off.”
And, then there is the health care industry – a group that will be dramatically affected by the law. Well, another interesting picture emerges there: according to the February 2 Wall Street Journal, health care entities are by and large moving forward on implementation of the law despite the two court decisions that have raised constitutional concerns about the law. And, indeed, health care investors are seeing the law as having benefits for most health care businesses as more people get health coverage and benefits are broadened.
The picture that emerges from these perspectives is that repeal is not the answer. Rather, the focus should be targeted on certain elements of the law (see “the Affordable Care Act and the Courts” for a discussion of an alternative to the mandate).
What is the path forward? The process through the courts will continue, ending up in the Supreme Court. We can only hope, however, that regardless of what happens in the courts, over the next few months, the focus in Congress turns to how to make this law work – and work better than currently designed – and moves away from the currently unhelpful discussion about an outright repeal.