Shaheen warns of potential Obamacare repeal; says backup plan needed

  • Sen. Jeanne Shaheen, center, addresses a room of health care representatives at the New Hampshire Medical Society, Feb 14, 2020. Ethan DeWitt—Ethan DeWitt

Monitor staff
Published: 2/20/2020 12:35:34 PM

The U.S. Supreme Court has a “greater than 50% likelihood” of overturning the Affordable Care Act in the next two years, Sen. Jeanne Shaheen warned recently, a reality she says should force candidates to focus on health care this election year.

At a meeting of New Hampshire health care stakeholders at the New Hampshire Medical Society in Concord last week, Shaheen said that a lawsuit against the law, often referred to as “Obamacare,” should land at the Supreme Court by 2021.

And when it gets there, she said, the court could find it unconstitutional.

“The conventional wisdom that I hear in Washington is that the decision has been delayed until after the election ... and that there is a greater than 50% likelihood that it’s going to be overturned,” she said. “And so it’s worth thinking about what we do about that and what happens to our health care system as we see it today.”

First enacted in 2010, the Affordable Care Act sought to transform American health care by requiring insurance companies to cover 30 million uninsured Americans and setting up a complex series of subsidies, incentives and risk pools to get it done.

But the law has faced continual criticism by some, particularly for its inclusion of an “individual mandate” to force many Americans to enroll in insurance or face a tax penalty.

In 2017, the Republican-controlled Congress eliminated that mandate as part of its tax cut bill. But by dropping the mandate, lawmakers also undercut a key feature that had kept the law constitutional in the eyes of the Supreme Court. In 2012, the Supreme Court struck down a challenge to Obamacare, holding that because it operated as a tax, the individual mandate is constitutional.

Now, with the tax portion of the individual mandate gone, the law has been challenged by 20 state attorneys general on the grounds that it’s been rendered unconstitutional. If successful, the plaintiffs’ case could see the entire law fall.

In December, the Fifth Circuit Court of Appeals sided with the plaintiffs, ruling the ACA unconstitutional. But the Supreme Court declined to take it up in this year’s docket, dashing expectations of a ruling by summer 2020. Now, the decision is certain to occur after the November election.

To Shaheen, the repeal of the law would send ripple waves through the health care system, imperiling tens of thousands of Granite Staters’ health care. But despite that, awareness among the electorate has been slow to pick up, she said.

“It’s something that I’m going to continue to talk about,” she said in an interview. “Because I think there are a lot of people who aren’t aware that there’s the potential for the court to overturn the law.”

Shaheen’s Republican challengers – who are vying for the party’s nomination to take on the senator in November – feel differently. While none have called for an explicit repeal of the Affordable Care Act, many say it’s a failing system that should be replaced with a free-market alternative.

Former Brig. Gen. Don Bolduc has predicted that “Obamacare is going to collapse under its own weight” and called on a change in Congress to support the president’s plan.

Corky Messner, another Republican candidate, has called for a more competitive, free-market system that allows insurance to be purchased across state lines and to promote access to health savings accounts.

And former New Hampshire House Speaker Bill O’Brien once compared the ACA to the 1850 Fugitive Slave Act in 2013, arguing it was equally destructive to individual liberty. More recently, he has pointed to spiking premiums for those on the individual markets – the pools set up under the ACA for those without access to employer-provided insurance.

Shaheen has argued that the ACA is the best vehicle for the benefits it provides, from protection for coverage for pre-existing conditions to the list of essential health benefits the law requires insurers to provide.

But unlike some members of her party running for president, the two-term U.S. senator is not supporting Medicare for All as an immediate step, instead cosponsoring more incremental pieces of legislation such as the “Medicare at 50 Act,” and a bill to allow states to create a state-based public option.

“I’m going to continue to argue that we should build on the Affordable Care Act,” she said. “We should not overturn it and totally change our system again start from scratch.”




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