Democrats already have Mitt Romney’s Massachusetts health care law to thank for inspiring the Affordable Care Act, which relied on a similar framework. Now they can credit the 2012 Republican presidential nominee with helping to save it from an existential legal threat in King v. Burwell.
Chief Justice John Roberts cited Romney’s law extensively throughout his opinion explaining the court’s 6-3 decision to uphold Obamacare’s subsidies. Legal scholars say the 2006 Massachusetts law, which Romney championed and signed as governor, played a key role in bolstering the White House’s case that the ACA always intended to provide subsidies to federal and state exchanges, despite a clause that referred only to “an exchange established by the state.”
“The Commonwealth required individuals to buy insurance or pay a penalty, and it gave tax credits to certain individuals to ensure that they could afford the insurance they were required to buy,” Roberts wrote. “The combination of these three reforms—insurance market regulations, a coverage mandate, and tax credits—reduced the uninsured rate in Massachusetts to 2.6 percent, by far the lowest in the Nation.”
Why does this positive retelling of Romney’s success in Massachusetts matter? Because, as Roberts went on to note, Congress used the Massachusetts law as a model in crafting the ACA, which relied on a similar combination of a regulated exchange, a mandate to purchase insurance, and subsidies to expand coverage. Without all of these planks, the result would be a “death spiral” of overpriced premiums – something that Roberts noted had already happened in states that guaranteed insurance to all without a mandate or subsidies to bring down costs.
“These three reforms are closely intertwined,” Roberts wrote. “As noted, Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement. And the coverage requirement would not work without the tax credits.”
As a result, Obamacare’s ties to Massachusetts – which assiduously sought to correct the “death spiral” that had plagued other states – is one piece of evidence that Congress was not out to deliberately inflict that fate on other states.
“Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid,” Roberts wrote.
The Massachusetts law wasn’t the only evidence Roberts cited, but it played a prominent role in establishing the context in which – according to the court’s majority – the law was crafted in Washington, D.C.
“Roberts says Congress tried to avoid the kind of ‘death spiral’ healthcare reform faced in states that didn’t follow the Romneycare approach,” Adam Winkler, a professor of law at UCLA, told msnbc in an email. “Romney saved Obamacare.”
“I think that’s a fair reading,” Samuel Bagenstos, a law professor at the University of Michigan, told msnbc when asked whether Romney’s example bolstered the White House’s case based on Roberts’ opinion.
The irony is, of course, that Romney is a fierce critic of Obamacare who ran on a pledge to repeal it in 2012. Whether he likes it or not, Obamacare supporters owe him a debt of gratitude today.