California Forum

The GOP isn’t just giving the rich a tax cut for Christmas. It’s also killing Obamacare

President Donald Trump points to a “Merry Christmas” sign as he arrives to make remarks on tax reform at the St. Charles Convention Center in St. Charles, Mo., Nov. 29, 2017.
President Donald Trump points to a “Merry Christmas” sign as he arrives to make remarks on tax reform at the St. Charles Convention Center in St. Charles, Mo., Nov. 29, 2017. NYT

Congress is quietly handing the American people a huge lump of coal in their holiday stockings: the repeal of the centerpiece of the Patient Protection and Affordable Care Act.

The final version of the Republican tax bill repeals the “individual mandate,” the requirement that individuals purchase health insurance or pay a tax penalty. Previously, Congress rejected a repeal of the act, but with little attention or fanfare Congress is effectively accomplishing exactly that. This will mean that millions of Americans will lose their health insurance coverage and many of us will face much more expensive, but less desirable health insurance options.

When the repeal of Obamacare was openly debated, Republicans would not do it. Now they are succeeding and millions of Americans will suffer.

It always has been understood by everyone – President Barack Obama, the critics of the Affordable Care Act, the Supreme Court – that the individual mandate was the linchpin for the statute. The act imposed important restrictions on health insurance companies to protect consumers. The law says, for example, that no longer can insurance companies deny individuals health insurance because of preexisting conditions.

Previously, health insurance companies refused to provide coverage for those who had serious medical conditions. I had cancer in 1982. When I took a job as a law professor at the University of Southern California in 1983, its health insurance carriers would not allow me to enroll.

The Affordable Care Act also precludes charging more in premiums to those with chronic medical conditions, like diabetes or epilepsy. Additionally, the Affordable Care Act prohibits health insurance companies from putting a cap on yearly or lifetime insurance benefits. Prior to the adoption of the act, it is estimated that 54 percent of consumer bankruptcies were from health care costs.

But the problem is that these reforms, by themselves, would cause fewer people to purchase health insurance. If people knew that they could get health insurance at the same price when they were sick, they would wait until then to buy it. The pool of those insured would be disproportionately those needing significant medical care.

Health insurance only can work if it includes a large number of healthy individuals. That was the purpose of the individual mandate. It was universally understood that the only way to implement these health insurance reforms was to make sure that everyone was part of the health insurance system.

This was clear from the outset and the individual mandate was the target of the objections to the Affordable Care Act and challenged by those who opposed Obamacare. In 2012, the United States Supreme Court, in a 5-4 decision, upheld the constitutionality of the individual mandate as a valid exercise of congressional power. The four dissenting justices would have declared the mandate unconstitutional and said that would have made the entire act unconstitutional because it never could have been enacted without the individual mandate.

By any measure, the Affordable Care Act has been a huge success. More than 20 million more Americans have health insurance coverage because of it. Health care costs began to be controlled. The act stimulated the development of insurance exchanges that provided affordable coverage for many Americans.

But Republicans have continually opposed Obamacare and sought its repeal. Earlier this year, they failed to do so. Now, under the stealth of a complex tax reform bill, they have included the poison pill that will kill the act: the repeal of the individual mandate. There is no way to continue the other reforms of health insurance – such as the prohibition of denials for preexisting conditions, the restriction on greater charges for those with chronic health conditions, the elimination of caps on yearly and lifetime benefits – without it.

The bottom line is that millions will lose their health care coverage or pay much more for it. The Congressional Budget Office, a non-partisan research office in Congress, estimated that repealing the individual mandate will cause 13 million people to lose their health insurance.

Moreover, the CBO has estimated that the departure of healthy enrollees from the individual market spurred by repeal of the individual mandate will increase health insurance premiums by about 10 percent.

When the repeal of Obamacare was openly debated, Republicans would not do it. Now they are succeeding and millions of Americans will suffer. What a terrible holiday gift the Republicans are giving the American people.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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