Boston Herald Kimberly Atkins column

July 23--WASHINGTON, D.C. -- Setting the stage for another major Supreme Court battle over Obamacare -- and reigniting the political hot-button issue in time for the midterm elections -- two federal appellate courts have issued opposing rulings on whether individuals who buy insurance on the federal health care exchange instead of state exchanges can receive government subsidies.

New Hampshire Republican U.S. Senate candidate Scott Brown, eager to gain traction on what was his winning issue in 2010, seized on courtroom confusion to demand Democratic rival Sen. Jeanne Shaheen "explain her continued support for this failed law."

"The court's ruling means that people receiving subsidies ... will have to dig deeper into their own pockets to pay the full cost of their insurance, or taxes will have to be raised on all of us to make up the difference," Brown said in a statement. New Hampshire is one of the 36 states without a state-run exchange. Massachusetts has a poorly functioning state exchange and is considering switching to the federal exchange.

Shaheen countered in a statement: "Other federal appellate courts have come to a different conclusion than this court. The law was designed to make subsidies available for people to purchase health insurance, regardless of whether that was through a state or federal exchange, and I am confident that will be the ultimate conclusion. For now, people should be assured that nothing has changed with their premium tax credits; they continue to be available and will be in the foreseeable future."

Republicans have long argued the law is an overreaching and poorly crafted measure pushed through by Democratic lawmakers, but the issue had lost resonance on the midterm campaign trail after technical glitches with the Obamacare website were fixed and more people signed up through federal and state exchanges.

Yesterday's split decisions by appellate courts in D.C. and Richmond throw into doubt whether millions of people in states that send individual health care buyers to the federal exchange will get subsidies covering as much as 75 percent of their premiums. The expected U.S. Supreme Court decision on the issue will take at least a year to come down. The D.C. court ruled the law authorizes subsidies only to those who purchase from exchanges "established by the state."

But within hours, the Virginia court backed the Obama administration's position that the law can be interpreted to authorize subsidies for federal exchange users.

New Hampshire Democratic Chairman Ray Buckle, citing the second decision, blasted Brown, calling it "shameful that New Hampshire Republicans cheered a court decision that could make insurance coverage less affordable for 30,000 people in New Hampshire."

The rulings, each by three-judge panels, were stayed as the losing parties decide whether to go to full appellate panels or seek direct appeal to the Supreme Court.

"Politically, in the short term, the ruling (by the D.C. Circuit) favors Republicans" in the midterms, said Robert J. Blendon, a Harvard health care policy professor.

But Blendon said in gubernatorial races in non-exchange states, it could boost Democratic candidates pushing for the establishment of state exchanges.

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