Many congressional Republicans are distancing themselves from the Trump administration’s court filing supporting repeal of the Affordable Care Act’s (ACA) protections for people with pre-existing conditions and limits on how much insurers can charge people based on gender and age.
The Department of Justice said in a brief last week that it would not defend these provisions against a legal challenge to the ACA brought by a group of 20 conservative states. The case, filed in federal district court in the Northern District of Texas, argues that Congress’ decision to kill the individual mandate penalty (starting in 2019) in the new tax law means that all of the ACA should be ruled invalid.
Unlike the states, however, the DOJ brief says the law’s employer mandate, Medicaid expansion, public exchanges and other provisions should be kept. But the administration argues that without an individual mandate penalty, the Supreme Court’s rationale for upholding it the mandate in 2012--that the penalty is a “tax” and therefore imposing the mandate’s tax is a valid exercise of Congress’ authority--disappears next year. Because the ACA’s protections for people with pre-existing conditions and community rating are “inseverable” from the mandate, they must also fall, the DOJ says.
While some conservatives are cheering, Democrats are blasting Republicans over the DOJ's administration’s stance and believe they now have a powerful campaign message. But few GOP lawmakers are defending the administration’s stance and are instead emphasizing their support for pre-existing condition protections. During last year's ACA repeal-and-replace debate, virtually all Republican legislation retained protections for people with pre-existing conditions.
Sen. Lamar Alexander (R-TN), chairman of the Health, Education, Labor and Pensions Committee, said in a statement there is “no way” Congress would repeal the health law’s protections to ensure people with pre-existing conditions can purchase coverage without being charged more for it. He attacked the decision not to defend the law.
“The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard,” he added. “Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with pre-existing conditions.”
Senate Majority Leader Mitch McConnell (R-KY), said this week that “every senator” supports such protections.
And Health and Human Services Secretary Alex Azar told a Senate panel this week that the DOJ position is a “legal” policy position and that he supports protections for individuals with pre-existing conditions. “We share the view of working to ensure that individuals with pre-existing conditions can have access to affordable health insurance," he said.
The states’ lawsuit has a long way to go in wending through the courts, and some experts don’t think it has much of a shot.