By Andrew Koppelman
Obamacare has been like the title character in Samuel Beckett’s Waiting for Godot: everyone talks about it but it never arrives. It is finally about to make its entrance. On 1 October 2013, all 50 states and the District of Columbia will open health insurance marketplaces (sometimes called “exchanges”) for people who aren’t covered by their employer or a government program. In these online marketplaces, insurers won’t be allowed to discriminate based on pre-existing conditions. On 1 January 2014, the law will begin subsidizing health insurance for millions of people — everyone between 100% and 400% of the poverty level. (The Supreme Court gave states the power to block the statute’s intended free medical care for their residents who were below that threshold, and many of them, in one of the nastier developments in recent American politics, have done so.)
This will have a dramatic effect on the politics of health care. Until now, the Republicans have been able to continue to use Obamacare as a political piñata. It’s complicated and poorly understood, and so they’ve been able to attach to it any derogatory label that they like. The House of Representatives has voted to repeal it so many times that it’s amazing that they ever manage to do anything else. Now, for huge numbers of voters, Obamacare will become easy to understand: it will be the reason why they can afford health care. Other government programs are complicated. It takes an expert to understand the details of Social Security, but most people know what it means to them. Obamacare will become like that.
It’s hard to predict what will happen to the Republicans’ narrative of Evil Obamacare in the face of these realities. Their opposition to the law was crystallized in their constitutional challenge to the law. They are now closely tied to a narrative that looks pretty nasty if you think about it.
Universal health insurance logically means that everyone has to have insurance. Yet the lawyers who challenged the Affordable Care Act (ACA) argued, on the basis of a strange notion of liberty, that this requirement — that everyone has to carry insurance — was an intolerable imposition. Call it Tough Luck Libertarianism. The challengers read into the Constitution the notion that the law’s trivial burden was intolerable, even when the alternative was a regime in which millions were needlessly denied decent medical care. Their Constitution is one in which, if you get sick and can’t pay for it, that’s your tough luck.
Since then, in their repeated attacks on Obamacare, they have continued to rely implicitly on what I’ve called Tough Luck Libertarianism. They haven’t had to take responsibility for that because the people whom their approach would hurt haven’t even known that they and their families were being threatened. The most politically maladroit aspect of Obamacare was the long delay in its implementation. Now, however, we’re in a different world. Once I know that I’m getting subsidized insurance, I’m likely to get mad if you try to take it away from me.
I don’t expect the Republicans to recant their views. They are so committed to eradicating Obamacare that they might shut down the federal government. But as public opinion shifts, they won’t be able to keep that up. What will happen will look a lot like what has happened with gay rights: the theme slowly becomes fainter and fainter, until you can’t hear it at all any more. This war, like that one, is essentially over. It doesn’t mean, however, that there won’t be some nasty fights in the endgame.
Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University. His books include The Tough Luck Constitution and the Assault on Health Care Reform, Defending American Religious Neutrality, A Right to Discriminate?, and The Gay Rights Question in Contemporary American Law.
This week we’re offering views and insights from Oxford University Press authors on the Affordable Care and Patient Protection Act in anticipation of open enrollment beginning on 1 October 2013. Read yesterday’s article by Theda Skocpol and Lawrence R. Jacobs: “What does health reform do for Americans?”.
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Image credit: Medical Stethoscope on folded American Flag for US Health Care concepts. © jcjgphotography via iStockphoto.