Is the "Mend It" Period of the Affordable Care Act's Evolution Beginning?

All of a sudden, people in Washington seem to want to fix the Affordable Care Act. And regardless of their motivations, that should be—well, maybe "celebrated" is too strong a word, but we can see it as a necessary and positive development. Is it possible that the arguments about whether the ACA was a good idea or should have been passed in the first place are actually going to fade away, and we can get down to the businesses of strengthening the parts of it that are working and fixing the parts that aren't? It might be so.

Sure, cretinous congressional candidates will continue to display their seriousness by pumping paper copies of the law with bullets, probably for years to come. But with this year's open enrollment period coming to an end in a few days, a particular reality is starting to set in, namely that, however you feel about the law, millions of Americans have now gotten health insurance because of it. Repealing it would mean taking that insurance away. So let's look at what people whose political fortunes are dependent on some measure of anti-ACA grandstanding are doing.

First, a group of centrist Democrats, mostly from conservative states, offered a plan to make some changes to the ACA, some of which are more meaningful and reasonable than others. Yes, they're doing it because they want to give themselves some political cover. But that's OK. Meanwhile, some Republicans are, for the umpteenth time, crafting a package of things they claim will "replace" the ACA. Of course it's the same few things they've always advocated—make it impossible for people to sue for medical malpractice (AKA "tort reform"), let people buy insurance across state lines, encourage health savings accounts. Nobody who has thought about health care for five minutes thinks those "reforms" would do anything to address real health care challenges, but more importantly, they wouldn't prevent the massive upheaval that would occur if you repealed the ACA. And that's a reality that will become increasingly clear: the disruption of taking away the ACA now would be even greater than the disruption the law brought about in the first place.

So if Republicans took over the Senate, there would be a brief period of kabuki, in which they would attempt to pass their reform package, then President Obama would say, "This is a joke" and veto if it passed. Then they'd have to decide if they actually wanted to address their specific complaints about the ACA. And yes, we have to start from the assumption that everything conservatives say about the Affordable Care Act is offered in bad faith (sorry, conservatives, but you've earned it). That doesn't mean, however, that they can't prove that assumption wrong at some later date.

Democrats should respond by welcoming a more particular debate about the ACA, starting from the presumption that it's law now and millions of people are dependent on it, so the question is what needs adjustment. Republicans can no longer just shout "This law sucks, because freedom!" It's too late for that.

And some context is in order. Before the law was even passed, many of its advocates were careful to note that no matter how much care went into its design, adjustments were going to be required as it was implemented. That's how things always go with complicated laws: conditions change, certain features don't work the way they were supposed to, and unforeseen challenges emerge. Revising existing legislation is a substantial part of lawmaking, and always has been. For instance, when Social Security was created in 1935, it was written to exclude agricultural and domestic workers, which included most blacks in the South (there's some debate about whether this was actually done in order to secure the support of Southern segregationists). That didn't change until the 1950s. Survivor benefits for spouses and children were also added later. Cost of living adjustments were added later. In other words, the most successful and popular social program in American history required a lot of changes and alterations as it evolved, and no one ever expected that the ACA would be any different.

There are going to be changes to the ACA in the coming years, just as there should be. The trick now will be making sure the right changes are made.

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