Durenberger: Law will not be repealed

Did you know that bookmakers take odds on U.S. Supreme Court decisions? Neither did I until I heard the odds against the Patient Protection and Affordable Care Act being held constitutional were 5 to 1 going into last Thursday’s decision.

The 5-4 opinion, upholding the law, was written by Chief Justice John Roberts Jr. The opinion will go down in history as will the law itself, because of the incredible interest in the outcome and because it comes with four months left in an election campaign which may be decided by voter opinions of the law.

It may also have been historic because of the role the chief justice played in deciding its constitutionality. In finding the mandate that everyone be required to purchase private health insurance or pay a financial penalty, an unconstitutional exercise of the commerce power granted Congress in the constitution, Roberts was joined by four of his conservative colleagues on the court. In upholding the mandate and its penalty as a constitutional exercise of the Congress’ power to spend and tax he was joined by the four liberals.

A larger majority of the court joined in Roberts’ opinion that the Congress did not have the right to withhold Medicaid funds from states that refused to enact the law’s new Medicaid expansion. This broadened eligibility for the joint federal/state program and promised the federal government would pay 100 percent of added costs in the first four years and 90 percent thereafter.

Obamacare itself is historic because it is so comprehensive. Despite the fact that federal and state government finances 46 percent of the $2.6 trillion annual cost of health care in this country, more than 50 million of us are uninsured and many millions more underinsured. The new law expands insured coverage to 30-32 million uninsured. It sets rules for health insurance competition which require companies to improve evidence-based benefits, risk assumption rules for eligibility and renewal, the amount of premium paid to providers, and the addition of catastrophic coverage.

It is historic because at the same time it expands coverage it changes payment policy to provide incentives for health care providers and systems to improve health and health care quality, safety and effectiveness.

Interestingly, those of us in Minnesota don’t see the historic proportions of the law because we have benefitted from thoughtful bipartisan efforts to do both coverage expansion and value-based care payment and delivery for decades. But to a fair amount of the rest of this country, and to all Americans, this is a big deal.

For that reason, it has also been polarizingly political. The President chose to launch this reform effort early in his presidency, at a time when the nation had not yet begun to recover from the destabilizing impact of what’s now called the Great Recession, while hundreds of thousands were losing jobs every month and while Congress was still being asked to go deeper into debt to bail out vital industries and to stimulate employment. In the summer of 2009, Senate Republican leader Mitch McConnell said the number one goal of his party was to make the new president a one-term president.

As a result of all of this, Obamacare has been opposed by every elected Republican in state or federal government from its inception, many of whom joined in contesting its constitutionality. I have been engaged in national health policy reform since my election to the U.S. Senate and its Finance Committee in 1978. This law is built on a chassis of health policy reform in which both Republican and Democratic members of the U.S. Senate have been involved for many years. Despite that fact, and it is a fact, the partisan split on the law continues into the 2012 election.

Republicans in the House will vote to repeal the new law this week. The Republican presidential candidate Mitt Romney has pledged, if elected, to repeal it as the first item of business on his calendar. This is despite the fact that he enacted almost the same policy in Massachusetts as governor which our former Minnesota Gov. Tim Pawlenty dubbed Romneycare.

In my view the law will not be repealed, but it can be reformed by bipartisan consensus because too much of it is supported by the millions of health care professionals who are already engaged in health reform. They think it’s time for national health policy to catch up to the reform that’s alive and well in Minnesota.

Dave Durenberger is a former Republican U.S. senator for the state of Minnesota. He is the founder and current chair of the National Institute of Health Policy at the University of St. Thomas.

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