I think one of the fundamental, but not expressly discussed, debates driving our health policy discussions in the United States is this: should the objective be that everyone has access to the same healthcare, or should it be to ensure everyone has access to a minimum necessary level of care? 

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Implementation of the Affordable Care Act actually could have gone either way with respect to this debate. I previously have ranted at length about the forgone opportunity mandated by that legislation to create a simple, streamlined, economical national plan that would be the basic plan on the exchanges. The Department of Health and Human Services under the Obama administration opted not to implement that requirement, and the Trump administration has taken the same path, at least to date—and despite our advocacy for them to do otherwise.

Instead, we have plans that are too rich and too expensive, and we have individual health insurance markets that seem to be teetering. And, as I am repeatedly reminded, we have done nothing to address the underlying cost of care issues that are the real root cause of access problems, regardless of your philosophical perspective.

But eight years after the ACA’s passage, the focus in Washington has shifted away from efforts to upend the law that dominated the House of Representatives’ debates for so long. The question now is what’s next?

For the balance of this year, more modest efforts to scale back the law and its impact will continue. Efforts to rationalize the ACA employer reporting requirements, repeal the Cadillac Tax and expand the reach of association health plans will continue, and expansion of the state waiver process could begin to erode some of the ACA’s universal coverage objectives. More fundamental reform, however, is off the table for now.

That could change next year, though. In the Senate, the Republicans hold a slim 51-49 advantage. The vast majority of the seats up this year currently are held by Democrats (24 seats) and by two Independents who caucus with the Democrats. Republicans have only eight seats being contested. In addition, 10 of those Senate Democrats seeking reelection sit in states won by President Trump in 2016. The current climate is unpredictable though, and the Republican advantage is razor thin.

In the House, there currently are 238 Republicans, 193 Democrats and four open seats (three Republicans and one Democrat have resigned and not yet been replaced). The Democrats therefore need to win a net 27 seats to get to the magic 218 to take control of the House.

A quick Google search for the “odds of the Democrats taking back the House in 2018” will identify myriad predictions that the likelihood of the Democrats taking control of the House is as high as 75%. Looking at political analyst Charlie Cook’s current race-by-race projections is much more sobering for Democrats, however, as they currently show the Democrats would have to win all of the 23 races Charlie has put into the toss-up category (which includes three seats currently held by retiring Democrats) to hit the 218 go-ahead number.

The bottom line in these volatile political times though: anything can happen.

Let’s do a thought experiment. What happens if (when?) the Democrats do take back the House and the Senate either next year or later? If the individual health insurance marketplace continues to be perceived as struggling, the first initiative might be the “Medicare for All” bills that have been introduced in both the House and the Senate.

Former (and future?) presidential candidate Senator Bernie Sanders first introduced this legislation in 2009. It garnered no co-sponsors initially or when Sanders reintroduced that bill in subsequent Congresses. Until this Congress, that is. The current version of the bill now has 16 Democratic co-sponsors (approximately one third of all Senate Democrats).

Now-retired House member John Conyers (D-Mich.) introduced companion “Medicare for All” legislation in the House last year. That bill now has 121 Democratic co-sponsors (almost two thirds of all House Democrats).

The train might be moving. If enacted, that engine would:

  • Create a universal healthcare system
  •  To provide “comprehensive protection against the costs of healthcare and health related services”
  • Funded by a variety of tax increases and new payroll taxes.

Under the Senate bill, it would be unlawful for “a private health insurer to sell health insurance that duplicates the benefits” that would be available under the bill in any way. Employers would be similarly barred from providing any such benefits.

The House bill includes a parallel bar on private insurers but does not—yet—extend that bar explicitly to employers (although presumably they could offer only self-insured coverage, and it is unclear whether they would be able to access stop-loss insurance).

Both bills also include long-term care insurance as a component of the universal healthcare systems they would create, and both would allow continued private market offering of benefits that would be in addition to those that would be provided under federal law. But the universal coverage floor under these proposals would be quite high overall.

The Democrats may not take control of either chamber next year, but at some point they will. And the momentum within the party to support this effort is growing. Enactment of the legislation in anything resembling its current form would be the ultimate victory for those who favor access to the same healthcare for all. It also would be the end of the employer-provided benefit system as we know it.

If that’s not a call to arms, what is?

Sinder is The Council’s chief legal officer and Steptoe & Johnson partner. ssinder@steptoe.com