By Nick Erickson
A main architect of one of the most consequential and significant pieces of legislation in modern United States history advised GW Law students on Wednesday night to always look at regulations and languages in exhausting all legal options to pass a bill.
Sound advice from someone who has won a significant Supreme Court case that bears her name.
Former Human Health and Services (HHS) Secretary Kathleen Sebelius, the ex-governor of Kansas who served in President Barack Obama’s administration and was instrumental in passing the Affordable Care Act (ACA), spoke as part of the Kahan Health Law Initiative Distinguished Speaker Series in a jam-packed George Washington University Student Center Amphitheater. GW Law Dean Dayna Bowen Matthew moderated the event.
Sebelius, whom Obama appointed as HHS secretary in April 2009 to accelerate the passage of universal health care in the midst the H1N1 influenza, said the ACA was artfully crafted and took the creative work and careful strategic communication to push the envelope, change wording and reallocate resources—all in a legal manner—that ultimately led to its passage in March 2010.
“It would have never happened without that kind of effort and that kind of mission driven work, and I think that’s going on all over the place where if you get stopped in front of one door, you figure out another,” Sebelius said.
Sebelius, of the landmark case National Federation of Independent Business v Sebelius, discussed the obstacles and hurdles overcome in passing and then defending the ACA. During the tense debates in Congress and even after passage, she knew eventually the individual mandate and Medicaid expansion would go to the Supreme Court. On June 27, 2012, the court ruled in a 5-4 decision that the individual mandate was indeed constitutional and also struck down provisions that would withhold federal Medicaid funds from states that did not expand the program while upholding the Medicaid expansion in general.
Since the benefits didn’t come until January 2014, Sebelius said the biggest sense of relief from the decision was that there was still hope for the people who were desperate for health insurance.
“We had heard these stories and had seen these folks and worked with them and the notion that that would be wiped away was just horrific,” she said. “So yes, there was definitely a jubilance about it.”
Matthew told her that her GW Law students read the case at least twice in two different courses.
Another important piece of advice Sebelius gave to aspiring law students in attendance was that once something is passed, it is very hard to turn it back. She noted that while some of the main rhetoric during Republican President Donald Trump’s campaign and then time in office centered around “repealing Obamacare,” it in fact never was.
She also said that despite the loud noises coming from Congress in opposition, it was received better by local government officials who in essence were frontline workers. Sebelius specifically noted mayoral backing because they were paying for a lot of services—drug plans in jails, mental health services—out of their budgets and saw the ACA as support.
“What happened was as soon as we crossed that line, we had allies that ceased to be partisan and were much more interested in their constituencies,” said Sebelius, doubling down on her message to pass legislation by any legal means necessary. “You have to get through the legislative fray in order to plant the flag, but once that flag is planted, you need everybody mobilized around what that means.”
Matthew asked about the impact of the ACA today, and Sebelius acknowledged that there’s been damage to the law in the years since its passage but that pieces are being put back together. That includes further expanding Medicaid, paying attention to equity issues, reaching out to people and providing more resources for states that hadn’t yet expanded Medicaid.
She also discussed the possibility of Medicare receiving the ability to negotiate drug prices, noting there weren’t enough Democrats in the House or Senate in 2010 to pass the prescription drug negotiation piece, which made Obama “crazy.”
Sebelius said the current healthcare framework is still a march toward universal coverage, but the gaps are still showing now the two tiers of health coverage in the United States, and there is still a lot of progress to make to fill those gaps. She noted how much the pandemic and access to testing and even vaccines highlighted how far the country still has to go in addressing health inequities.
“There’s a pretty clear notion that your zip code is much more predictive of your mortality rate than your genetic code,” she said.
Students were engaged throughout the talk and filled the 15-minute Q & A session about legislative strategies and how to combat inequities going forward.
“It’s the sign of a great conversation when there are more questions than there is time,” Matthew said. “And we did have a rich conversation.”
Sebelius is concerned how political the response to the pandemic became, further eroding trust in the country’s healthcare system. She called on a need for clear and effective communicators throughout the scientific community. She knows it’s going to take a great deal of time to continue filling in the gaps to help the most vulnerable. But speaking to an audience of future policy makers and upholders of the law who showed clear signs of a commitment to carry on her work, she remained hopeful for progress.
“I have to be optimistic,” she said. “I’m a Democrat who lives in Kansas, for God’s sake.”
