Republicans in Congress have a straightforward path to eliminating key pieces of the Affordable Care Act: They can block the planned insurance expansion in 2017, dismantle Medicaid expansion, and eliminate new insurance marketplaces. That could add up to an incredible blow — possibly causing 22 million people to lose their insurance coverage.
But getting rid of the rest of the law wholesale is a lot trickier.
Rolling back provisions — including one allowing young adults to stay on their parents’ health plans and another banning lifetime coverage limits or one banning the rejection of people with pre-existing conditions — would be harder under Senate rules.
This is good news for people who get insurance at work and who benefit from these insurance rules. But it’s little comfort for anyone who buys their own insurance, like a contractor, freelancer, or anyone who isn’t part of a group plan through their employer.
These people could face huge disruptions in their coverage. If Obamacare repeal moves forward without any replacement, they could find themselves facing much higher premiums — or no health insurance plans that want to sell them coverage.
“They have a death blow to the Obamacare health coverage expansion,” says John McDonough, a Harvard University professor who worked in the Senate on the passage of the Affordable Care Act.
We don’t know what, exactly, the future of Obamacare looks like right now or what approach Congressional Republicans will take toward dismantling the law. But after talking to a half-dozen experts over the past few days, it seems likely to me that one of these four scenarios — or some combination of them — will play out.
Which one moves forward matters: Some scenarios allow Republicans to repeal the insurance expansion, but would keep Obamacare rules for the employer market (again, the coverage to age 26 provision and ban on lifetime limits). Some will get rid of everything. The stakes are different depending on what direction Republicans head, and this is a guide to where they most likely will go.
Scenario 1: Trump and a Republican House dismantle major parts of Obamacare via reconciliation, leading to 22 million Americans losing insurance
This is arguably the most plausible outcome at the moments. Republicans unravel Obamacare’s insurance expansion — both the Medicaid expansion and private health insurance marketplaces — which would, according to the Congressional Budget Office, lead to 22 million losing coverage.
Senate Republicans only need 51 votes to get this done. They’d use what is known as the “reconciliation process,” which would allow them to make changes to anything that affects the federal budget. Parts of the law that don’t affect the budget can’t be changed using this process.
Last winter, Republicans drafted a bill that would fit the parameters of the reconciliation process. HR 3762 was introduced into the House on October 16, 2015, by Rep. Tom Price (R-GA).
Abbe Gluck, a law professor at Yale University, describes it as “a blueprint for how you might pull the guts out of the Affordable Care Act.”
This bill would do a lot to dismantle Obamacare. It would repeal Obamacare’s tax credits for low- and middle-income Americans to purchase insurance at the end of 2017. It would end the individual mandate penalties for not buying coverage. And it would end the Affordable Care Act’s Medicaid expansion at the same time, essentially creating a two-year transition period in which Republicans would presumably consider Obamacare replacement plans.
The bill doesn’t abolish Obamacare entirely through reconciliation. It doesn’t, for example, repeal the provision that allows young adults to stay on their parents’ health plans — that doesn’t cost the federal government anything. Congress also couldn’t repeal the ban on annual or lifetime limits for coverage.
Republicans actually don’t bring back pre-existing conditions through this option either — insurance plans would still be required to offer coverage to anyone who wants it.
That being said, this would not be a good situation for people who buy their own insurance. Quite the opposite, experts expect that the individual market would collapse if this repeal bill passed without a replacement plan.
Here’s why: The repeal bill gets rid of the health care law’s key tools to get people to sign up coverage, insurance subsidies to make plans affordable, and the individual mandate to make carrying coverage the law. Without those, premiums would near certainly spike as only the sickest people buy coverage — and health plans would likely flee the market, no longer finding the population an appealing one to cover.
“I think the market self-destructs if you don’t have the premium tax credits or don’t have the mandate,” says Tim Jost, emeritus professor at William and Mary College of Law.
“The private market would collapse, and might no longer exist,” says Nicholas Bagley, an assistant professor of law at the University of Michigan who focuses on health policy.
One other thing to keep in mind about the 2015 reconciliation bill: It’s not the final word on what Republicans could repeal through reconciliation. It is what Republicans came up with in December, when they knew it would be vetoed by President Obama.
But now that it has a decent chance at passing, legislators might try and tack on the repeal of other Obamacare provisions — and try to convince the Senate parliamentarian that these pieces also relate to the federal budget.
“The 2015 bill is a floor, but it doesn’t tell us about other sections they might try to include,” says Gluck. “It’s unpredictable what will be judged to have budgetary implications. In 2015, they didn’t need to be careful. They knew their bill wouldn’t pass. Now, they might want to think more carefully about what to include.”
Scenario 2: Trump and the Republican House dismantle major parts of Obamacare through reconciliation — and replace it with something else
Repeal, at this point, feels like political certainty. Republicans have spent six years calling for the end of Obamacare. Now that they have a clear path to make that happen, most experts expect them to follow it.
The remaining question is whether they’re able to follow up with a replacement plan.
“It will be really easy for the GOP to defund the Affordable Care Act and take it away,” says Robert Laszewski, a health care consultant. “The second half of what they need to do is much more difficult. It will be well into fall 2017 at the earliest before a replacement plan might be in effect.”
The clearest outline of what a Republican replacement plan might look like is Speaker Paul Ryan’s Better Way proposal. It includes a refundable tax credit to make individual insurance more affordable and allows insurance plans to sell across state lines.
Better Way would require insurance plans to accept all customers. But it would also let insurers charge sick patients more if they didn’t maintain continuous coverage, and had a break insurance. So under Better Way, insurance plans would be required to provide coverage, for example, to cancer patients — but could also charge them higher rates. It’s possible that those rates could be so high that patients couldn’t afford them.
Better Way does maintain the ban on pre-existing conditions and the provision that allows young adults to stay on their parents’ insurance through age 26.
The Better Way plan is thorough, with a clear vision of what health care might look like under a Trump administration. At the same time, it is still very much an outline — a 37-page document that has broad policy proposals that would need to be hammered out into actual legislation.
“Better Way isn’t in legislative form, and the Senate hasn’t weighed in,” says Chris Condeluci, who worked as tax and benefits counsel for the Senate Finance Committee's Republicans during the Affordable Care Act debate.
This is why most observers expect it would take at least a year for Republicans to draft and pass an Obamacare replacement plan — and even more than that to write out the regulations and set up the infrastructure in order to implement it.
“The Trump administration, if they like it or not, they’re going to have to run Obamacare for two years,” says Laszewski.
Scenario 3: The Senate eliminates the filibuster and repeals Obamacare outright
Right now, the big thing holding Republicans back from repealing Obamacare outright is the need for 60 votes in the Senate to overcome a filibuster. This pushes them to use the wonky reconciliation process where they can only get rid of the parts that touch the federal budget.
The easy way out of this problem is, of course, to end the filibuster. Democrats already took steps to weaken the filibuster in 2013, and Republicans could decide to eliminate it entirely.
“The ‘right’ to filibuster is fragile: It has never been affirmed in the rules of the Senate, it has always been subject to limitation by precedent, and the 2013 precedent highlighted how easy it is to restrict or eliminate the right,” writes political scientist Gregory Koger.
Without the filibuster, Republicans could pursue complete repeal and replace. Under this scenario, they would be able to end parts of Obamacare that don’t touch the federal budget, like free preventive benefits or the requirement that all people get charged the same premium, regardless of whether they’re healthy or sick.
What comes after repeal, once again, would still be in question — and this scenario, if it does happen, would likely lead to the second scenario in this piece, where Republicans begin to figure out what their replacement plan looks like, and there are questions of whether they pass a replacement at all.
Scenario 4 (possibly concurrent with 1,2, and 3): Trump uses executive action to dismantle certain parts of Obamacare as the Republican Congress needs time to pass repeal
Most of the big parts of the Affordable Care Act need Congressional approval to dismantle. But what President Trump could do unilaterally is re-write some key Obamacare regulations that would alter how the law works.
If you read through the text of the Affordable Care Act, you won’t find any mention of “contraceptives” or “birth control.” That’s because the law doesn’t actually include a mandate to cover contraceptives.
Instead, it says that health insurance must cover preventive health benefits for women — and then punts to a division of Health and Human Services to decide what counts.
It wasn’t always clear that birth control would make the cut. When Obamacare passed, it was a genuine question whether the Obama administration would include birth control in its list. I know because I covered the debate when I was a reporter at Politico at the time. Groups like Planned Parenthood lobbied the White House to include it.
Finally, the administration issued regulations in 2011 announcing that it would include birth control as a preventive benefit for women. A Trump administration could write its own regulation to say birth control isn’t preventive health care for women.
There are other parts of the Affordable Care Act like this. Right now the Affordable Care Act requires insurance plans to cover a set of “essential health benefits.” The law itself contains broad categories, like preventive services and trips to the hospital, but it’s only in regulation where the actual types of care get hammered out. So the Trump administration could write new regulations that significantly reduce what health plans need to cover, and cross a lot of items off the Obama administration’s list.