Could the GOP face a backlash if they get their wish in Supreme Court ACA decision?

Could a decision against the government in King v Burwell lead to a backlash against the GOP? Gary Cameron/Reuters

Republicans have been fighting against the Affordable Care Act (ACA) ever since it became law. Now they may have problems if they see their long-elusive goal achieved.

Most Republicans are eagerly hoping that the US Supreme Court will put a nail in the coffin of the ACA. The court is due to issue its decision in King v Burwell on whether people living in the over 30 states using the federal insurance marketplace, HealthCare.gov (as opposed to state created exchanges), are eligible for health insurance subsidies.

The Republican Party wants the court to say the US Department of Treasury is wrong in allowing the subsidies. But the Republican Party has a problem: a presidential election is approaching, and a ruling against the government in King v Burwell could remove coverage from over six million Americans based largely on a mistaken legal technicality in the law’s drafting.

If the Republicans get what they wish for in King v Burwell and millions of people lose health insurance subsidies, the GOP could face a backlash in the 2016 election, especially if it’s a close race.

What happens if the subsidies go?

The subsidies are a central element of the ACA, making it easier for middle-class and low-income people to afford the health insurance. Indeed, 85% of 2015 enrollees are receiving financial assistance for the program. A ruling that voids the subsidies for people in states using the federal exchange could cause the premiums of other Americans to increase dramatically, given the loss of these subsidies. And a lot of these people vote.

Supporting a decision that leaves six million people without coverage and raises premiums for others could further the image of the Republican Party as an uncaring party of the wealthy.

It could even benefit Hillary Clinton, who has long supported federal health care. It could also cost the GOP female votes, since some of the most controversial components of the ACA are aimed at women, such as contraception.

Energizing one side

There is precedent for a US Supreme Court decision creating a backlash that helped one of our political parties. Most experts agree that the US Supreme Court’s endorsement of a right to abortion in Roe v Wade catalyzed a pro-life movement that in turn energized a Republican Party base on social issues, and indeed caused some Independents to become Republicans. Certainly, the presidencies of Nixon, Reagan and both Bushes owe much to this effect, which is still ongoing as states are now passing numerous laws restricting abortions.

It is reasonable to suggest that the nation’s growing inequality and weakened middle class will be a focus of the 2016 election.

Though Obamacare’s rollout was imperfect and its poll ratings could be higher, those concerns could easily change if many Americans either lose their newly found health care or see their premiums skyrocket, should the Supreme Court rule against the government in King v Burwell. It is striking that Congress could fix the language issue in Obamacare quickly but for the GOP political opposition and showmanship.

A pro-health care backlash isn’t an outlandish or unlikely result. Over 10 million people, for example, have signed up for Obamacare. And the Occupy movement certainly showed a grassroots concern about wealth issues. A Supreme Court ruling against the Obamacare subsidies could mobilize these vulnerable groups in ways that could be a nightmare for the GOP presidential candidate.

Now, abortion and Obamacare are very different issues. The vulnerable fetus is a strong political image. But a powerful narrative for the Democratic Party is that a great country does not abandon its own sick children and adults. Indeed, there seems little question that some who lose this health care will die.

Even the Congressional Republicans have acknowledged that if they prevail in the case (and, by the way, this is the third challenge to the ACA to reach the US Supreme Court, in addition to over 50 votes against the law in the House), they will have to figure out a substitute of some type or face political repercussions. So far, the divided Republicans have not agreed on any alternative that would last beyond the presidential election.

Thus, ironically, they are vulnerable to the same kind of backlash that they profited from because of Roe v Wade. Given recent poll results showing that the public does not trust the court much on such politicized issues, and since the Supreme Court is mostly Republican-appointed, this may also not bode well for the court if they strike down this crucial part of Obamacare. It could add to a perception among the public that the court is acting for political rather than legal reasons.