Remarkably, against all the odds and years of campaign promises, most of the Affordable Care Act is still the law of the land. In 2010, the passage of the most sweeping health-care reform in half a century galvanized conservatives, lending to Republican victories in Congress and becoming a major contributor to the party’s current dominance across all three branches of government. In the past decade of politics, even as different wings of the GOP vied bitterly for control of the party, one near-constant position among candidates has been the platform on Obamacare: repeal, and replace.
But over the years, reality has caught up to Republicans. Obamacare’s insurance markets have become a standard part of the health-care infrastructure. The catastrophic vision of death panels and government-run health care that Republicans once predicted has been replaced with a reality of very real, but more banal and less frightening, issues and barriers. Several Republican governors have yielded to economic and popular pressures in expanding Medicaid programs to low-income adults, and in several other states people are forcing the issue themselves. Public opinion for Obamacare is now regularly stacked in favor of the law. Much of that support comes from the overwhelming popularity of one of its signature reforms: a rule keeping marketplace insurance plans from denying people coverage for preexisting conditions.
This election cycle, the preexisting-conditions provision finds itself once again in the policy spotlight. Still beholden to old pledges and still involved in ongoing attempts to undermine or repeal the ACA, Republican candidates are facing the reality that the law’s preexisting-conditions component is political dynamite that could destroy the party’s chances in 2018. Now Republicans are scrambling to rebrand themselves as defenders of one of the most popular health-care reforms in the country—or at least, to give the appearance of doing so.
More so than at any time since the long saga of the failed repeal of Obamacare in 2017, the key provision appears now to be in danger. In a lawsuit led by Texas officials that has percolated into federal court over the past year, 20 GOP officials across the country have argued that most of Obamacare—and its mandated preexisting-conditions coverage, chiefly—should be declared unconstitutional after Congress’s decision to invalidate the law’s individual mandate in its major tax reform in 2017. Legally, the effort was originally something of a long shot, a continuation of old conservative efforts to argue that Obamacare could not exist in anything but the form its drafters originally intended. Any modifications or eliminations of provisions created by either court decisions or acts of Congress, so the argument goes, invalidated the whole thing. The suit originally seemed mostly like an opportunistic gambit by Republicans in red states to register a complaint about the law, and to build up the rhetorical structure needed to one day overturn it.
But the GOP now finds itself in the middle of a dog-catches-tail moment. Donald Trump’s Justice Department, in keeping with his ongoing strategy to utilize any and all mechanisms available to weaken the ACA, filed a brief in support of this lawsuit, arguing that both the policy requiring insurers to cover people with preexisting conditions, and the policy keeping insurers from charging them more or denying them because of those conditions, should be declared unconstitutional. With the imprimatur of the White House, and with an argument from the DOJ on hand that would invalidate even more pieces of Obamacare than the original Republican plaintiffs intended, the case now appears to have a real chance to materially affect or constrict the federal provisions of Obamacare. But with that, the lawsuit carries a significant political cost, giving Democrats an issue with which to hammer Republican officials, most of whom supported some kind of repeal in the past.
Democratic lawmakers learned the effectiveness of the preexisting-conditions provision as a galvanizing force during the drawn-out fight over Obamacare repeal in 2017. Explaining the gargantuan 2010 bill has always been a challenge for Democrats, but in preexisting conditions, they found a way to distill the health-care fight in a voter-friendly way: Attempts at repeal were attempts by Republicans to strip away a now-crucial protection that regular Americans had against corporate insurers. Objections to losing the preexisting-conditions ban were part of just about every Democratic statement on the various Republican plans that came about. As Senate Minority Leader Chuck Schumer said about the Senate bill to repeal and replace Obamacare, GOP efforts would “abandon people with preexisting conditions.”
Preexisting conditions became a firewall of sorts. People with disabilities and those with chronic conditions that would have been disqualifying for coverage before Obamacare’s passage stormed the Capitol, providing stark imagery for the stakes of repeal. In the end, those stakes, outlined so simply for potential voters, were one of the crucial reasons why Republicans with majorities in both houses and with a filibuster-defeating procedural mechanism still couldn’t marshal the votes to repeal Obamacare after months of trying.
Those lessons are still fresh in Republicans’ minds as the 2018 election is now just weeks away. The final stretch of the campaign has involved quite a bit of backtracking from those same politicians. In a September rally in West Virginia for Senate candidate and current state Attorney General Patrick Morrisey, Trump told the crowd that “preexisting conditions are safe,” despite his own administration’s participation in a lawsuit that threatens to undermine preexisting-conditions protections. Trump didn’t mention that. He also didn’t mention that Morrisey, who is fighting to unseat Democratic incumbent Joe Manchin, was one of the 20 Republicans who signed on to the original lawsuit.
Other Republican officials have sought to head off the bad press from the federal Obamacare lawsuit. In August, a group of Republican senators introduced a bill that ostensibly would have protected people with preexisting conditions. On Tuesday, Congressman Pete Sessions of Texas introduced a nonbinding resolution pledging the chamber and party to upholding the preexisting0conditions ban by some unspecified means. “I proudly introduced this resolution to ensure that patients with preexisting conditions are protected from the erroneously high costs and the limited options they are experiencing now,” Sessions said. The resolution managed to find 18 total co-sponsors. On the trail, Republican candidates like Florida’s Rick Scott, who is campaigning for a Senate seat, have cast themselves as the true defenders for preexisting conditions. “I believe that if you have a preexisting condition, you need to still be able to get health care, so it’s very important to me,” Scott told reporters after a debate this week.
Even Trump, whose DOJ is still an active participant in the lawsuit against Obamacare, has attempted to portray the GOP as the party in favor of preexisting-conditions provisions. “We will always protect Americans with preexisting conditions,” he told a crowd at a rally Thursday night in Minnesota. “Some of the Democrats have been talking about ending preexisting conditions, and some people have. You know what I say? We will get a little more money from China. It will be just fine. It will be good. It will be just fine. We will take care of preexisting conditions, remember that.” Democrats have not talked about ending the preexisting-conditions coverage, and it remains to be seen what a plan to fund an alternative program presumably using tariff concessions from China would entail.
It’s unclear whether these gambits will work to protect Republicans from political attacks. Sixteen of the 18 sponsors of Sessions’s resolution voted for Obamacare repeal in the past, and the party’s record on the issue is unambiguous. Trump’s DOJ is literally on the record that the Obamacare provision stopping insurers from price-gouging or denying people with preexisting conditions is unconstitutional. And so, the DOJ argument goes, is any effort to compel them to provide any services related to those conditions, even if they do choose to cover those people. The resolutions provided by Republicans are vague and not necessarily as resonant as the imagery of sick, dying people that is already being used to thwart their plans.
And it’s still clear that these plans from Republicans aren’t really serious about the policy issue of coverage for preexisting conditions. The issue is complicated, since the patient population is expensive and requires many other policy levers—such as the old, dead individual mandate—to act as pay-fors. And most of the Republican efforts to head off criticism for abandoning people with costly conditions, like high-risk pools, have been woefully underfunded and anemic, and unsuited to the true task of covering such a difficult population. But those older plans, although not nearly big or ambitious enough for the task, provided some semblance of a plan. Sessions’s resolution and Trump’s promises do not.
Perhaps more than anything else, the preexisting-conditions provision has limited Republican options when it comes to actually repealing Obamacare. And it’s provided Democrats with some lasting and damaging political ammunition against opponents. The upshot is that cases like the Texas lawsuit actually affect people’s lives. The GOP doesn’t yet have the language—or the policy—to reckon with that fact.
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