ACA repeal-and-replace efforts just got a lot more difficult

The battle ahead for Republicans who hope to repeal and replace the Affordable Care Act is one that will be fought on the campaign trail, even as markets move ahead with more confidence after last week's U.S. Supreme Court decision.

The ruling—a huge win for President Barack Obama and the millions of people who get to keep their subsidized coverage—means the market disruption that will accompany any future effort to dismantle the law will grow significantly larger since millions more people are likely to gain coverage through the federally run exchanges over the next two years.

The court's decision left little prospect that legal challenges will dismantle the law before 2017. Any congressional repeal effort faces the threat of a veto while Obama is still in office. And the next administration—should the GOP win the White House and keep control of Congress—will see the law's achievements further cemented in place.

“It is such a clear judgment,” said Joseph Antos, a healthcare economist at the American Enterprise Institute, a center-right think tank in Washington. “That's it. This is a clear message to Republicans if you want to change anything about the ACA, you really do have to repeal it and start all over again.”

Republicans were swift to denounce the court's 6-3 decision. Congressional leaders and presidential candidates reacted by vowing to jettison the law.

“I am disappointed in the Burwell decision, but this is not the end of the fight against Obamacare,” said former Florida Gov. Jeb Bush, who leads Republican presidential candidates in fundraising, in a Twitter post.

Markets, however, were jubilant, and the rally underscored what observers described as a growing certainty that the insurance market for millions of Americans created under the ACA will remain.

Perhaps most important, said both opponents and supporters of the law: Republicans must clearly articulate an alternative to the Affordable Care Act.

GOP plans will likely include popular ACA consumer protections, such as the guarantee that people can't be denied coverage because they are already sick. “It is political reality that we are not going to go back to the old days where people can be refused coverage,” Antos said. But alternatives would also likely not mandate purchasing coverage, which is necessary to preserve the financial viability of an individual insurance market with guaranteed issue.

Republican presidential hopefuls, including Louisiana Gov. Bobby Jindal, Florida Sen. Marco Rubio and Texas Sen. Ted Cruz, each of whom has offered proposals to replace the ACA, now face a higher bar. “Obviously, it's incumbent on them to explain what that would be and how that would work better than before” the Affordable Care Act, said Deborah Chollet, a senior fellow at the policy research company Mathematica, where she studies health insurance markets. “Explain to me why we're not going to see steadily rising uninsured and steadily rising healthcare costs, aside from the broad rhetoric that markets always work.”

Without the mandate for individual coverage, insurers will press to refuse coverage to those already sick. Removing the mandate that individuals buy insurance “pulls the thread which dismantles” the market, Cholett said.

The result would likely be the return of small, costly high-risk pools that, before the ACA, offered unaffordable coverage to people with cancer and other pre-existing conditions who couldn't buy insurance elsewhere. “If it did not work before, why would it work now?” she said.

Republicans in Congress vowed action after the decision, but offered few specifics for replacement. House Majority Leader Kevin McCarthy (R-Calif.), said in a statement that the court's ruling confirmed “we must repeal and replace this fundamentally flawed law.”

House Speaker John Boehner declined to say if the House would vote this year on a Republican alternative to the law. “We'll see,” he said at a post-ruling news conference. “There's been discussion about that. Most of the discussion so far this year was if the court ruled against the administration in King v. Burwell, what the response would be.”

Public opinion is split on the ACA, with foes slightly outnumbering supporters, and both camps split along party lines, the latest Kaiser Health Tracking Poll found. The political divide was equally clear on public attitudes on what should happen next. Democrats largely support continued ACA adoption or expansion, while Republicans mostly favor scaling back or scrapping the law. Independents were evenly split.

Striking down mandates that everyone buy insurance and employers offer health benefits won approval from roughly 40% of Americans. More important, the poll found, was the high cost of prescription drugs.

Democrats in Congress seized on the ruling to rebuke Republicans who continued to call for repeal. On Twitter, Democratic senators derided further efforts to dismantle the law. “Memo to the nonstop critics of the Affordable Care Act: Stop trying to kill this program and work to make it stronger,” tweeted Sen. Dick Durbin of Illinois.

Advocates for the uninsured, meanwhile, saw the decision as cementing the ACA into U.S. policy. “The Affordable Care Act is now, essentially, a permanent part of America's healthcare system,” said Ron Pollack, executive director of Families USA.