When the D.C. Circuit Court ruled this week that the Affordable Care Act unambiguously prohibits subsidizing health plans on federally-run exchanges, raising the possibility that the Supreme Court might gut the law on second pass, I argued that an adverse ruling in Halbig v. Burwell would actually be bad politics for Republicans: that the pressures such a ruling would create might be enough to divide Republicans and force Republican governors and members of Congress to address the resulting inequities.
The good news is, we have a pretty good, recent, real world example of how these pressures work. And it bodes pretty well for supporters of the Affordable Care Act.
It's possible that after an adverse ruling in Halbig, the American health care system would reach quasi-stable equilibrium. Bluer states would reap all of the ACA's benefits, redder states would enjoy none. I examined that possibility here. New York magazine's Annie Lowrey drew a comparison between an adverse Halbig ruling and the Supreme Court's decision to make the ACA's Medicaid expansion optional. As a result of that ruling, nearly two dozen states have declined to expand Medicaid leaving millions of low-income Americans stuck in the coverage gap.
But I don't think Medicaid expansion is the proper analogy.
The Republicans who opted out of the Medicaid expansion had Obamacare's implementation timeline on their side. At the time of the ruling in 2012, zero people in the country were eligible for expanded Medicaid, because the Medicaid expansion wasn't effective until January 1, 2014. Republican governors could opt out without making anyone's lives worse. Or rather, they could make people's lives worse without taking anything away from them.
That won't be the case if the Court invalidates Obamacare subsidies in Healthcare.gov states. People will lose their health plans, and will expect their state and Congressional representatives to reinstate them. And it wasn't the case in Arkansas earlier this year, when the state had to authorize the federal funds designated for its Medicaid expansion, after tens of thousands of people had already enrolled.
The measure required 75 votes in the 100-member, Republican-dominated state House. And for weeks, more than two dozen Republicans withheld their support. In vote after vote, the authorization failed. If a handful of Republicans hadn't changed their minds, they would've kicked all those new beneficiaries out of the program, just days after they'd entered it.
But that's exactly what happened.
The Arkansas News quoted two of the GOP legislators who ultimately caved.
Rep. Kim Hammer, R-Benton, said on the House floor that he had decided to vote “yes” after voting against the appropriation earlier in the session.
“There are people that would be hurt if I don’t vote for this, and I don’t want to see those innocent people get hurt because of that,” he said, adding that he would continue to fight for changes to the program and that he would vote against it next year if it does not produce the promised results.
Also voting for the program, after voting against it as recently as two weeks earlier, were Reps. Skip Carnine, R-Rogers, and Mary Slinkard, R-Gravette.
Carnine said later he has many reservations about the program, but he said the Legislature will have other chances to revisit it.
“Now was the time to move on,” he said.
I imagine the pressures facing legislators from Healthcare.gov would be similar if subsidies suddenly became unavailable and tens of thousands of their constituents lost their health plans. Arkansas is no squishy liberal state. But the politics of sitting on your hands when your voters are about to be (or have just been) harmed don't wear well, even in the most conservative parts of the country.
Brian Beutler is a senior editor at The New Republic.