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Battlegrounds abundant for health care reform repeal

Even as new provisions of the federal health care reform law go into effect, the fight over the landmark measure rages on. From the halls of Congress to the court room to statehouses across the country, opponents are waging battle.

Here are the major opponents’ strategies and how they could play out.

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Strategy one: Health care reform repeal

health care reform repealDespite its passage by the Republican-controlled House of Representatives, the so-called "Repealing the Job-Killing Health Care Law Act" isn't going anywhere in the next two years, given Democratic control of the Senate and a certain veto by President Obama.

Political undoing of the Affordable Care Act depends on the outcome of the 2012 election, says Ben Domenech, a fellow with The Heartland Institute, a conservative think tank, and managing editor of the institute's "Health Care News."

But time is not on the opponents' side. Major change will be harder to make once Americans are accustomed to the law’s health insurance coverage benefits, such as prescription drug discounts and free preventive care for seniors on Medicare, effective Jan. 1 this year.

Domenech says the biggest deadline is 2014, when exchanges -- one-stop shops for buying health insurance -- open for business and almost everyone will be required to buy health coverage as part of the “individual mandate” requirement of health care reform).

Dr. Karen Edison, director of the Center for Health Policy at the University of Missouri in Columbia, Mo., says undoing the Affordable Care Act will be a "hard-pitched battle."

"It is the law of the land," she says. "It's not just a proposal. . . . People are already benefiting from it."

Strategy two: Chip away

Congressional Republicans will try to weaken what they consider to be objectionable provisions and delay or cut funding.

Amanda Austin, director of federal policy for the National Federation of Independent Business, which opposes the law, sees opportunity here. The group, for instance, is fighting a new business tax-reporting requirement, which it says will create a paperwork nightmare for small-business owners.

She acknowledges addressing certain health care reform provisions may be tough, though, because of the way some provisions are bundled. It's hard to change one thing without impacting something else.

Domenech doesn't see much chance for significant change in the next two years.

"I think many Republicans and newly elected representatives will attempt to chip away at the law, but I think very few of these things will make it to the President's desk," he says. "There's not a lot of leeway, except tweaks."

For one thing, he says, few of those measures would survive a filibuster in the Senate. For another, "it's not in the best interests of many Republicans to make this law work better."

One way Republicans could have an impact is through increased oversight on federal agencies as health care reform is implemented.

"You'll see a lot more questioning," Domenech says.

Strategy three: It’s all in the interpretation

The Affordable Care Act lays out principles of reform, and federal agencies create rules for how those principles are carried out. Interest groups will battle over interpretation.

Opponents such as the National Federation of Independent Business will lobby for less regulation, while consumer advocacy groups will push for strict interpretations.

Strategy four: State resistance

Resistant states could delay or refuse to implement parts of the law. The American Legislative Exchange Council, which promotes a free-market and limited government, recently issued a list of tactics states can use to slow or stop the health care reform provisions from being implemented.

But the federal government can implement some parts of the law if states fail to act, such as creating health insurance exchanges, and uncooperative states could lose federal funding.

"Usually money trumps ideology at the state level, where politics are generally more pragmatic than they are in Washington; but the recent elections brought substantial changes to many state legislatures, and the patterns I saw when I was in state government may or may not be a good predictor of behavior this time," Kaiser Family Foundation President and CEO Drew Altman wrote in an analysis of the House repeal vote for the foundation's website.

Strategy five: Sue ‘em

In a Florida-led lawsuit, 26 states and the National Federation of Independent Business are challenging the constitutionality of the Affordable Care Act's Medicaid expansion and the individual mandate requiring people to buy health insurance in 2014. Virginia is also challenging the individual mandate in a separate lawsuit, and Oklahoma says it will do the same.

U.S. District Court Judge Roger Vinson in Florida heard oral arguments in December and is expected to rule on the Florida-led case within a month.

U.S. District Court Judge Henry Hudson in Virginia struck down the individual mandate as unconstitutional in a December ruling. The federal government filed a notice of appeal Jan. 18.

Both cases are expected to wind up in the U.S. Supreme Court.

"I think we'll hear from the Supreme Court before 2012," Domenech says. "The cases are actually very simple."

Whether the challenged provisions could be severed from the law, allowing the rest of the Affordable Care Act to stand, is uncertain. But even if some parts of health care reform are struck down, the practical ramifications would be enormous if the individual mandate were removed. The mandate creates a large enough risk pool to keep premiums down and enable insurers to cover pre-existing conditions.

"It is the linchpin," Edison says. "Everything is built on the mandate. It's what got insurance companies, hospitals and some doctors to the table."

Only time will tell the outcome of the various battles, but one thing is sure: Debate over fixing the health care system won't end anytime soon.

"It's not that our members don't want health reform," Austin says. "They don't want this one."

Edison says the law is already improving lives. How the nation handles reform, she says, "really speaks to who we are as a people."

More from Barbara Marquand here

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