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Thursday, December 8, 2016

If Obamacare survives the latest Supreme Court challenge, it will really be the cat with nine lives.

The death of what became the Affordable Care Act has been predicted regularly ever since President Obama’s election in 2008. Right afterwards, I got a wave of calls from reporters, each highly skeptical that the president-elect would really try to get health care passed. When you consider the relentless attacks and near-death experiences ever since, the reporters’ skepticism was understandable.

So when I found myself with a fresh surge of anxiety before the Supreme Court heard oral arguments in March on the latest assault on the law, I decided to list all the times that the survival of the Act was up in the air. And when I then counted them, it turned out that they numbered eight. So if Obamacare survives this last, desperate challenge in the Supreme Court, it really will have nine lives. Here they are, in chronological order:

1. The Great Recession: After Obama’s election a chorus of pundits predicted that the new president would have to give up his promise of health care reform because of the economic crisis. Instead, the president worked to get the economic stimulus passed, while paving the way for health reform. Just a few weeks after the stimulus became law, the president went on a national tour to push for action on health care.

2. Tea Party August: The Tea Party movement came to national attention with loud, vitriolic attacks on health care at congressional town meetings held by Democrats in August 2009. Republicans gleefully predicted they had killed the bill. But by the second half of August, supporters of health reform had rallied at dozens of town hall meetings, usually turning out more activists than the Tea Partiers. The press didn’t give the same attention to meetings that were not marked by raucous demonstrations. But Democratic lawmakers were sent back to Congress knowing they had support in their home districts to move ahead.

3. Scott Brown’s Election: The surprise election of Republican Scott Brown to the U.S. Senate in January 2010, on a platform opposing health care, looked like it might kill the bill. But having voted to pass the legislation in both houses, Democrats were not going to turn back. President Obama rallied the public by finally attacking the practices of health insurance companies and even without a filibuster-proof majority in the Senate, the Patient Protection and Affordable Care Act became law.

4. The Supreme Court Challenge: Immediately after the ACA’s passage, opponents launched a legal attack, which – shocking most legal scholars – was taken seriously by the courts. And by the time the Supreme Court heard the challenge, the odds were that the Court would gut the key provision of the law that enabled insurance to be affordable to individuals. But Chief Justice Roberts saved the day  – and much of the Court’s credibility.

5. The 2012 Election: If the Senate had gone Republican in 2012 – as was widely predicted – and Mitt Romney been elected, Obamacare would have been repealed. Instead, the ACA emerged with a new electoral mandate.

6. Government Shutdown and Congressional Repeals: I hesitated to put the 50 or so Republican votes to repeal the law, culminating in the government shutdown in the fall of 2013, on the list, only because of President Obama’s veto pen. But even if the ACA always had the presidential veto as armor, the barrage of repeal missiles has got to be counted. Texas senator Ted Cruz led the government shutdown before health insurance enrollment opened up because, as he said, “no major entitlement has ever been implemented and then unwound.”

7. Healthcare.gov: And then, with the disastrous launch of the website to enroll people in health care, Ted Cruz appeared to have gotten his wish fulfilled. The ACA might not be legally dead, but much of it was functionally comatose. Then the administration resuscitated the website, and millions were enrolled and started benefiting from the coverage. It looked like, as Cruz feared, the ACA was here to stay.

8. Supreme Court Redux: That is until the Supreme Court agreed to hear a desperate, last-minute challenge to the ACA’s subsidies for millions of newly enrolled people in the King v. Burwell case. Could this be like one of those movies where the soldier survives the war, only to be killed by a bullet on his way home, fired by an enemy that hadn’t heard the war was over?

The news reports of the oral arguments were encouraging, particularly Justice Anthony Kennedy’s raising of a constitutional issue with the plaintiff’s case. And there are a host of other legal reasons to believe that the lawsuit is groundless. But then it did get this far. The opponents have been relentless. They haven’t gotten the message that the war is lost.

In June, we’ll find out if the ACA is indeed the cat with nine lives. Easy to laugh at, if not for the fact that the actual lives of millions of people who rely on the law for life-saving health care are at stake.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Advisor to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

This was originally published in Next New Deal, the blog of the Roosevelt Institute.

Photo: Mark Hillary via Flickr

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