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Obamacare's next fight for survival

Obamacare -- the law that refuses to die -- is suddenly under attack again.

Republicans will take full control of Congress in January and repealing Obamacare will almost certainly be one of their first priorities. The GOP is seizing on leaked tapes in which MIT professor Jonathan Gruber, an architect of the law, said the \"stupidity of the American voter\" and a \"lack of transparency\" were vital to its passage in 2010. And, perhaps most importantly, the Supreme Court is poised to rule on subsidies that are central to the law.

\"We have to take it very seriously. It is hard to predict how the Court will ultimately decide,\" said Ron Pollack, executive director of Families USA, an advocacy group that campaigns to sustain Obamacare.

It's a surprising turn of events for an issue that had seemed to move to the back burner in recent months. The law has already survived one key Supreme Court challenge and millions are now insured because of the legislation. And the issue, which was expected to dominate this year's elections, took a back seat to fears about Ebola and ISIS.

The next round of open enrollment for Obamacare begins Saturday.

The Supreme Court poses the gravest threat after agreeing to hear a challenge to the crucial tax credits that subsidize health coverage purchased on federal exchanges.

In what amounts to a tussle over language, the suit contends that the law permits subsidies to be dispersed only through state exchanges. But 35 states rely on federal exchanges to market health insurance --- in many cases because Republican governors who oppose Obamacare refused to set up marketplaces. To reach consumers in those states, the federal government offers a market place and subsidies.

But if the Court rules next year that those federal subsidies are illegal, it could throw the entire health care system into chaos, threaten millions of health plans and send the entire law into a \"death spiral.\"

Chief Justice John Roberts, who outraged conservatives by saving Obamacare from a previous Supreme Court challenge in 2012, may again be the crucial swing vote.

But there is a chance that even an adverse ruling would not end Obamacare's life.

Harvard Law Professor Einer Elhauge says some states, to protect themselves against possible health care chaos, might finally decide to set up their own arrangements or partner with the federal exchange.

\"The prospect of that disruption is sufficiently problematic that I would not be surprised to see a lot of states adopt exchanges,\" said Elhauge, who authored a book on the original Obamacare Supreme Court case.

Obamacare also faces a political assault from resurgent Republicans devoted to the mantra : \"repeal and replace.\"

Because so many party candidates vowed to eliminate the law during their election campaigns, Republican leaders in the House and the Senate are under pressure to schedule votes to do just that.

But the votes will be largely symbolic.

Though they captured the Senate, Republicans are still short of the 60 votes needed to overcome Democratic filibusters. And even if they did put a repeal bill on the President's desk, there is zero chance he would sign it and destroy his own proudest political achievement.

So, as a fallback plan, opponents of Obamacare will likely try to tear it down bit by bit, possibly by attaching bills amending it to must-pass legislation.

Plans are piling up. Paul Ryan and Florida Sen. Marco Rubio are teaming up to produce a plan to \"deliver quality affordable health care coverage to American families,\" a spokesman for the Wisconsin lawmaker told CNN.

Utah Republican Sen. Orrin Hatch has a market based health care plan he wrote with Sens Richard Burr and Tom Coburn.

\"Conservatives should ... take advantage of opportunities to repeal any part of the law and replace it with better policies that empower Americans, not Washington,\" Hatch wrote in USA Today on Wednesday.

Wyoming Republican Sen. John Barrasso, an orthopedic surgeon and health policy expert, warns GOP hopes of repealing Obamacare are not realistic until there is a Republican in the White House but told WPBI radio last month conservatives should \"systematically strip away the worst parts of Obamacare.\"

But some conservatives want a more radical approach, and recommend repealing Obamacare by using the budget tool reconciliation, which requires only 51 votes --- and, ironically, was used to pass the law in 2010.

But again, Obama would be ready with this veto pen.

Some adjustments to the law could draw some Democratic support.

They could include a repeal of the delayed employer mandate requiring large firms to provide health care and changes to rules requiring companies to provide insurance to employees that work more than 30 hours a week.

Some Democratic senators from red states are eying a repeal of the tax on medical devices , which raises $29 billion over the next decade to finance the cost of insuring more Americans.

But conservatives might be end up frustrated because none of the fixes that have a chance of becoming law will seriously undermine Obamacare as a whole.

\"The parts you could chip away out probably are not going to destabilize the legislation. It gets through with a few bits knocked off --- but it is still there,\" said Stuart Butler, a health care expert and senior Brookings Institution fellow.

Republican lawmakers determined to kill Obamacare may also find themselves under pressure from the corporate health firms which have spent millions of dollars adapting to the new law are are worried about more disruption.

But Obamacare's capacity to ignite controversy is undimmed.

Republican Senate Minority Leader Mitch McConnell couldn't keep a smile off his face on Thursday when discussing the leaked Gruber tape.

\"What this insider is saying confirms that they were spinning tales from the beginning --- that they did not tell the truth about ObamaCare,\" McConnell said.

House Speaker John Boehner's office said Gruber's comments proved Obamacare was rammed through Congress with \"arrogance, duplicity and contempt for the will of the American people.\"

A test also awaits on Saturday with the debut of the second open enrollment period for Baccarat, with advocates desperate to avoid website and other teething problems of last year.

The White House is backing efforts, which include mobile apps and targeted social media advertising, to recruit more \"young and invincibles\" --- people who are least likely to sign up for coverage but who are needed to offset older, sicker patients to make the system work.

The number of sign-ups in the three month enrollment period are likely to play an important role in the political debate going forward.

Federal officials last week projected that between nine and 9.9 million people would be signed up to Obamacare in 2015, lower than the 13 million number previously projected by the Congressional Budget Office.

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