The NEW ENGLA ND JOURNAL of MEDICINE

Perspective April 20, 2017

The Art of Repeal Republicans Health Care Reform Muddle

Jonathan Oberlander, Ph.D.

F
ailure is a familiar outcome in U.S. health ly demonstrates, still matter, too.
policy. Presidents have long struggled to Very conservative Republican law-
makers, including the House Free-
translate their promises and aspirations into dom Caucus, saw the GOP health
legislative victory. Harry Trumans national health bill as Obamacare 2.0, an insuf-
ficient repudiation that bent too
insurance program never came constitutes a major defeat for much to satisfy Senate budget-
close to becoming law. Richard President Donald Trump, who reconciliation rules and didnt go
Nixons universal coverage plan came to the White House touting far enough in deregulating health
did not pass. Congress rejected his deal-making skills, and Speak- care markets, reducing govern-
Jimmy Carters hospital cost-con- er of the House Paul Ryan, who ment spending, and curbing Med-
tainment bill. Bill Clintons cam- pushed for a quick repeal bill and icaid expansion. Less conservative
paign to enact universal insurance whose reform vision shaped its Republicans, on the other hand,
ended in political disaster.1 content. saw the legislation as going too
Yet even judged against this dis- Republicans failure to advance far in eroding insurance coverage.
mal history, Republicans March repeal-and-replace legislation re- Republican leaders couldnt craft
2017 efforts to repeal and replace flected persistent divisions within a plan that addressed those com-
the Affordable Care Act (ACA) the party. The partisan and ideo- peting concerns. They ended up
were an epic failure. Less than logical polarization between con- losing large numbers of votes
3weeks after introducing the gressional Democrats and Re- from both factions.2
American Health Care Act (AHCA), publicans in contemporary U.S. An enduring feature of Ameri-
the Trump administration and politics is extraordinary. Hyper- can political institutions is that
House GOP leadership withdrew partisanship has dented the ACAs partisan majorities dont guaran-
the bill from consideration with- political fortunes, complicated its tee legislative success. Its not un-
out holding a vote in the full implementation, and created an usual for members of Congress
House of Representatives. Their increasingly dysfunctional and to vote against a president from
inability to pass the legislation conflict-ridden federal government. their own party. Ryan and the
through the House where Re- Yet intraparty divisions, as the Trump administration calculated
publicans hold a sizable majority Republican reform debacle vivid- that House conservatives would

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PERS PE C T IV E
ultimately vote for a bill they did
not fully support because there
really was no choice: they wouldnt
wound a new Republican president
or miss a long-awaited opportu-
nity to repeal Obamacare. That
proved to be a colossal miscalcu-
lation.
The decision to push for quick
repeal also backfired. Conven-
tional wisdom is that presidents
should move fast to enact priori-
ties before their political standing
erodes. However, in the delibera-
tive world of Congress, speed is a
relative concept; even fast legis-
lative processes typically take a
long time. By congressional stan-
dards, the GOP tried to move the
bill at the speed of light, passing
it through two key committees be-
fore members even had an analy-
sis of its projected impact from
the Congressional Budget Office
(CBO) and trying to hold a vote
in the full House without hear-
ings to debate its merits, time to
assemble a majority coalition, or
an opportunity to sell it to the
public and negotiate with interest
groups. Moving fast to vote on
controversial legislation without
a consensus on what it should
look like makes no sense but
Republican leaders pushed ahead
nonetheless. In some respects, the
AHCAs collapse echoed the 1993
1994 Clinton health plan fiasco.
But whereas the Clinton plans
demise dragged on for a year,
Republicans somehow managed
to cram legion political mistakes,
strategic miscalculations, and leg-
islative defeat into just 17 days.
The Republican health care re-
form implosion underscores a cru-
cial reality: 7 years after Obama
cares enactment, the GOP lacks
a viable replacement for it. There
can be no repeal without replace
the ACA has changed too
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much in health policy, and too
many Americans benefit from it
to return to the status quo ante.
Yet Republicans could not formu-
late a plan that came anywhere
close to maintaining, let alone
improving on, the ACAs success
in covering the uninsured popu-
lation.
The ACA, which has helped
20 million Americans gain cover-
age, represented a historic step
toward making health insurance
a right in the United States; the
AHCA represented a historic re-
treat from that principle. The
House Republican bill would have
badly eroded insurance coverage,
substantially raised the costs of
individual plans for older Ameri-
cans, and made insurance bene-
fits less generous, increasing con-
sumers out-of-pocket expenses. It
proposed deep cuts both in Med-
icaid spending, including tight
caps on federal payments to the
states, and in financial help for
low-income Americans buying
private insurance, while giving
higher-income Americans and the
health care industry large tax cuts.
The CBO report on the AHCA,
which projected that it would in-
crease the uninsured population
by 24 million, was devastating.3
It exposed the fact that repealing
Obamacare meant not improving
American medical care, as Repub-
licans had promised, but making
insurance less affordable, less
comprehensive, and less secure
for millions of Americans. Re-
publicans can replace the ACA
with a bill that does not inflict
such damage only if they are
willing to abandon their com-
mitments to weakening regula-
tion, lowering taxes for higher-
income persons, and reducing
government assistance to low-
income Americans.
n engl j med 376;16 nejm.org April 20, 2017
The New England Journal of Medicine
the art of repeal
The Republican plan generated
a perfect storm of opposition. Its
promise to contract insurance cov-
erage and thereby reduce revenues
to the health care industry drew
fire from health system stake-
holders. Governors of both parties
objected to the staggering Med-
icaid cuts. The bill was too mod-
erate for conservative members
of Congress, too conservative for
more moderate Republicans, and
too partisan for Democrats. The
substantial premium increases for
older Americans in rural areas
would have hurt a constituency
that helped elect Trump. And the
plans threat to unsettle the sta-
tus quo, cut health benefits, and
increase the costs of purchasing
individual insurance alienated the
public.4
What will Republicans do next?
They could cooperate with Demo-
crats on reforms that address the
ACAs shortcomings, strengthen
insurance marketplaces, and make
coverage more affordable. But such
bipartisanship is probably a fan-
tasy. Republicans failed in their ini-
tial attempt to overturn Obama
care; they have not accepted the
ACA as a law that should be re-
formed rather than repealed.
Some Republicans favor resur-
recting repeal-and-replace legisla-
tion. Indeed, at this writing the
Trump administration and Con-
gressional Republicans are nego-
tiating changes to try and secure
the bills passage. The GOP must
overcome the divisions that de-
railed their original plan. Still,
conservatives desire to strike a
blow against Obamacare, even a
symbolic one, is sufficiently strong
that Republicans might find a
way to revive a repeal bill. If such
legislation does pass the House,
though, its chances of getting
through the Senate would be slim.
 PE R S PE C T IV E
The compromises under discus-
sion between the White House
and House Republicans en-
abling states to opt out of ACA
provisions requiring that insurers
not charge sicker persons higher
premiums (community rating) and
provide essential health benefits
(such as maternity services)
could further alienate moderate
Republicans who are already un-
comfortable with the bills effect
on Medicaid and insurance cover-
age. The changes the House bill
makes to insurance regulation also
could run afoul of Senate budget
reconciliation rules. And rolling
back the ACAs pop-
An audio interview
with Dr. Oberlander
ular consumer pro-
tections, including
is available at NEJM.org
those for persons
with preexisting conditions, will
spark additional controversy. Thus,
the prospects of GOP efforts to
resurrect repeal and replace re-
main highly uncertain.
If Republicans cannot pass re-
Delaying Competition from Generic Drugs
A Citizens Pathway Gone Astray Delaying Competition
from Generic Drugs
Robin Feldman, J.D., and Connie Wang, B.A.
M any medicines are making
headlines these days not for
their breathtaking ability to save
lives, but for their soaring prices.
Part of the problem occurs because
pharmaceutical companies have
become adept at converting regu-
latory pathways into vehicles for
profit-boosting pricing strategies.
Consider the citizen-petition pro-
cess that the Food and Drug Ad-
ministration (FDA) implemented
in the 1970s to give the average
citizen a way to voice concerns.
A recent large-scale study we con-
n engl j med 376;16 nejm.org April 20, 2017
The New England Journal of Medicine
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Copyright 2017 Massachusetts Medical Society. All rights reserved.
peal legislation, the Trump ad-
ministration has other options to
undermine Obamacare, including
weakening enforcement of penal-
ties for not obtaining insurance
and eliminating federal payments
to insurers that are required to
provide cost-sharing subsidies to
lower-income Americans for de-
ductibles and copayments.5 Such
actions could explode the individ-
ual insurance marketplaces. The
ACAs insurance exchanges re-
main vulnerable: in some states
they have been buffeted by high
premium increases and insurer
withdrawals.The continuing un-
certainty over the ACAs fate could
lead more insurers to exit these
marketplaces, potentially leaving
Americans in some areas of the
country with no options for buy-
ing subsidized coverage.
President Trump remarked that
nobody knew that health care
could be so complicated. Repub-
licans struggles to turn their
ducted using 12 years of FDA data
reveals that the concerned citizen
is frequently a drug company
raising frivolous or questionable
claims in a last-ditch effort to
hold off competition.1,2
The HatchWaxman Act of
1984 created a regulatory regime
to facilitate rapid market entry of
generics, allowing manufacturers
of generic drugs to rely on clini-
cal trial data from their drugs
brand-name counterparts. Today,
more than three quarters of pre-
scriptions are filled with generic
The Art of Repeal
repeal-and-replace rhetoric into re-
ality underscore just how compli-
cated it is.
Disclosure forms provided by the author
are available at NEJM.org.
From the University of North Carolina, Chap
el Hill.
This article was published on April 5, 2017,
at NEJM.org.
1. Blumenthal D, Morone JA. The heart of
power: health and politics in the oval office.
Berkeley:University of California Press,
2009.
2. Andrews W, Bloch M, Park H. Who
stopped the Republican health bill? New York
Times. March 24, 2017 (https://w ww.nytimes
.com/i nteractive/2017/03/24/us/politics/
republicans-opposed-health-care-bill.html).
3. Congressional Budget Office. Cost esti-
mate:American Health Care Act. March 13,
2017 (https://www.cbo.gov/publication/52486).
4. Quinnipiac University Poll. March 23,
2017 (https://poll.qu.edu/images/polling/us/
us03232017_Ukqbwg46.pdf/).
5. Sanger-Katz M. Trumps choice on
Obamacare: sabotage or co-opt? New York
Times. March 24, 2017 (https://w ww.nytimes
.com/2017/03/24/upshot/t rumps-choice-on
-obamacare-sabotage-or-co-opt.html).
DOI: 10.1056/NEJMp1703980
Copyright 2017 Massachusetts Medical Society.
The Art of Repeal
versions, whose availability can
reduce the price of a drug sub-
stantially. In response, drug com-
panies have developed complex
strategies to block entry by gener-
ics. Their incentive is clear: delay-
ing competition for just a few
months can translate into hun-
dreds of millions of dollars in
revenue.
Focusing on strategies that in-
volve manipulation of the citizen-
petition pathway, we analyzed
the timing of the filing of citizen
petitions relative to the filing and
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