Semro column: Renewed concerns for people with pre-existing conditions
If you buy your own health insurance and have a pre-existing condition, there’s something you should know about. Republican Attorneys General in 20 states and the Trump administration’s Justice Department are doing all they can through the federal court system to make sure that you’ll lose that coverage, or that at very least, it will cost you a whole lot more.
On Sept. 5, oral arguments began in the U.S. District Court for the Northern District of Texas, in yet another lawsuit against the Affordable Care Act (or ACA) called, Texas v. United States.
This lawsuit’s based on a dubious legal argument that goes something like this. Republicans repealed the individual mandate (the requirement to buy insurance or pay a tax penalty) in the 2017 tax bill. As a result, that provision should now be ruled unconstitutional. The Attorneys General argue that without an actual monetary fine, the mandate is illegal under the reasoning that Chief Justice John Roberts used to uphold the ACA back in 2012. And since the mandate’s a central provision of the law, the rest of it should be declared unconstitutional, too.
In June, the Trump administration’s Justice Department broke with long-standing precedent and decided that it wouldn’t defend the ACA against this legal challenge. But, even though the administration tacitly supports this lawsuit, it hasn’t given a blanket approval to declaring the entire law unconstitutional.
However, it does support the legal argument that the individual mandate and the provisions in the law that guarantee insurance coverage are inextricably linked. That means that those consumer protections would also have to be ruled unconstitutional. Unfortunately, those are the provisions that protect people with pre-existing conditions from being denied coverage or charged higher premiums because of their health status.
If this view prevails, insurers could once again deny some Americans coverage or charge them much higher premiums and fees. The private insurance market would no longer guarantee coverage and federal subsidies wouldn’t be able to shield those consumers against ever-increasing costs.
While this may be a convincing legal argument for some, it’s a bad political one. According to a recent Kaiser Family Foundation poll, 75 percent of all Americans (including 58 percent of Republicans) say that it’s “very important” that the protections for pre-existing conditions remain law. Not surprisingly, last month, 10 Republican senators introduced a bill to retain those protections should their party’s lawsuit succeed.
And it might.
After the Texas court rules on the case, the losing party will certainly appeal that decision to the U.S. Court of Appeals for the Fifth Circuit. And that judgment, whatever it is, will find its way to the Supreme Court.
Enter Supreme Court nominee Brett Kavanaugh. While on the D.C. Circuit Court, Judge Kavanaugh considered the constitutionality of the ACA back in 2011. In his dissenting opinion, he held that the President could choose not to enforce parts of the law he considered unconstitutional and that the taxing clause argument, which Chief Justice Roberts later used to uphold the law, was problematic. Finally, in his confirmation hearings, Kavanaugh refused to say that he would uphold coverage protections for people with pre-existing conditions.
Up until now, the defense of the ACA in the Supreme Court has depended upon a single vote. Judge Kavanaugh could be that deciding vote.
And, if the court rules in favor of this lawsuit, millions of Americans could lose the coverage and consumer protections they have now.
Hopefully, Colorado has one last safeguard, a 2013 “alignment” bill that included pre-existing condition protections in state law. But, if federal courts rule the ACA provisions unconstitutional, a lawsuit to strike down the Colorado law could certainly follow. And a future state Legislature could always decide to end those protections somewhere down the line.
Whether or not Texas v. United States succeeds, it ultimately shows a callous political direction that neither helps Americans nor improves an admittedly flawed health care system. It’s simply an effort to chew on a political dog bone regardless of the harm and chaos that it’s guaranteed to cause. Does the pursuit of this political strategy truly justify its potential cost to millions of Americans? For 20 Republican state Attorneys General and the Trump administration’s Justice Department, the answer appears to be “yes.”
As we approach the November mid-terms, there’s one overriding lesson in all of this. Elections have consequences.
Republican gains in the 2016 elections paved the way for the repeal of the individual mandate which set the stage for this court case. It also led to the confirmation of Justice Gorsuch, the still probable confirmation of Judge Kavanaugh and a 5-4 Supreme Court. If Republicans keep control of the House and Senate in 2018 there’s little doubt that the ACA will be repealed and probably not replaced.
As with so many other issues, the fight to protect health-care reform begins and ends at the ballot box.
Bob Semro of Glenwood Springs is a former health policy analyst for the Bell Policy Center, and a legislative and senior advocate.