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JAMA Forum Archive, 2012-2019: Health policy commentary from leaders in the field
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Health Reform: The Music Didn’t Stop a Second Time

I remember where I was when the music of health reform stopped the first time.

Andrew Bindman, MD

I was a Robert Wood Johnson Health Policy Fellow, working on the staff of the Energy and Commerce Committee that was chaired by Henry Waxman (D, Calif) in the US House of Representatives. It was January 19, 2010, a Tuesday evening, when the Democratic caucus in the House was meeting to strategize about how to complete negotiations with the Senate on the Affordable Care Act (ACA). Both chambers had already passed somewhat similar but ultimately different versions of the legislation. For health reform to be enacted, both chambers would need to pass the same exact legislation and then have the president sign it. Teams of congressional staff from the House and Senate had been working at a furious pace for about 3 weeks since New Year’s Day to reach agreement on a compromise bill that both chambers could pass with a new round of voting.

While the Speaker of the House, Nancy Pelosi (D, Calif), was addressing the caucus, suddenly some unexpected news arrived: in the Massachusetts senatorial race to replace Ted Kennedy, a longtime champion of health reform who had died a few months earlier, Scott Brown, a Republican, had defeated Martha Coakley, a Democrat. In a moment, it was as if all the air was sucked out of the room as everyone recognized that the ability to repeat the necessary act of getting 60 votes in the Senate for health reform was gone.

The process of conferencing between the House and the Senate came to a sudden stop. For weeks, there were no ongoing discussions between the House and Senate staff on health reform—and as a further deterrent, Washington, DC, was brought to a standstill by a series of particularly large snowstorms.

It took several weeks that involved a major amount of emotional effort and procedural maneuvering for the Democrats in Congress to regroup and overcome their sense of doom and defeat. A small group of leaders in the House and Senate was ultimately able to reestablish trust and belief among enough of their colleagues to restart and complete the process. To do so required many members of Congress, particularly in the House, to accept the version originally passed by the Senate with relatively few opportunities to make changes.

Watching this process up close, I saw how hard it can be even for some of the most powerful members of Congress to believe in change in the face of obstacles. No wonder so many Americans who deeply believe in the goals of health reform have struggled to embrace the ACA. After seeing the ACA having a very public “near death experience” in the Congress, many might not have been prepared to make an emotional commitment to believing in the possibility of health reform.

Since March of this year, when the Supreme Court heard the case challenging the constitutionality of federal health reform, I along with many others have been listening to hear if the music of health reform would stop again. Many signs pointed in that direction, including the fact that a majority of the justices had been appointed by Republican presidents and several high-profile cases in recent years had seemingly gone against the positions of Democrats.

In the first minutes after the Supreme Court announced its decision on the constitutionality of the ACA, it seemed that health reform would again come to a screeching halt. Several major news outlets reported—mistakenly—that a key element of the ACA, the individual mandate requiring all citizens to purchase health insurance, had been found unconstitutional. However, a few minutes later, in a twist befitting a law that has been extraordinary in so many ways—its size, the duration of its journey, the process of its passage, and its polarizing effect—we learned that in fact the law was mainly upheld, with the single change being the Court’s ruling against a requirement that states would risk losing their historical federal payments for Medicaid if they do not implement the expansion of Medicaid as directed in the ACA.

So how sure can we be that the music won’t stop again? Opponents frustrated by the Supreme Court’s decision vow to use the upcoming election in November to elect enough new federal politicians, including a new president, to pass a new law to replace the ACA. This will be no easy task. It would require passage in the House (something that is possible today with a Republican majority); passage in the Senate (where the Republicans would have to make substantial gains to capture a 60-vote majority); and the signature of a Republican president, something Governor Romney says he will provide if elected. While nothing is foolproof, the odds of pulling this off in our traditionally stalemated Congress are long.

Perhaps this helps explain why on the day the Supreme Count upheld the ACA, I heard many more expressions of excitement about this law than I ever had before, including when it first passed both chambers of the Congress and was later signed into law by the President. Like an underdog in a sporting match, the health care law overcame long odds and emerged victorious in the Supreme Court.

With this victory, the law became real for many in ways that it had not before. Those who had been afraid during the long months following the passage of federal health reform that it would again be stopped in its tracks finally allowed themselves to hear the music. They allowed themselves to feel hopeful and proud that as a country we took a major step toward equity and social justice.

About the author: Andrew Bindman, MD, is Professor of Medicine, Health Policy, Epidemiology and Biostatistics at University of California San Francisco (UCSF). He is the founder and Director of the University of California Medicaid Research Institute, a multicampus research program that supports the translation of research into policy.
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