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.”