In a federal courtroom in Texas on Wednesday, oral arguments begin in an extraordinary lawsuit that seeks to remove the Affordable Care Act’s protections for the tens of millions of Americans with preexisting conditions, allowing insurance companies to once again deny them coverage or jack up their premiums to unaffordable rates.
Who’s behind this lawsuit? Some fringe group of libertarian extremists? A bunch of socialists hoping to get the ACA struck down so that a single-payer system will rise from the ashes of the ensuing conflagration? Nope. With an exception here and there, it’s pretty much the entire Republican Party. The suit was brought by 20 Republican-run states and is being supported by the Trump administration.
Yes, that’s right: Two months before the midterm elections, after enduring a political disaster in its failed effort to repeal the ACA, and with Democrats hammering them daily on this issue, the GOP is trying to take away whatever security Americans might feel about their health coverage.
We have to say this for Republicans: When it comes to taking away protections for preexisting conditions, they aren’t kidding around. They really, really want to do it. They’d like to do it with legislation, as they tried and failed to do in July 2017. And they still want to. “We made an effort to fully repeal and replace Obamacare,” said Vice President Pence a week ago, and “we’ll continue to go back to that.” But if they can’t do it with legislation, they’ll try to do it through the courts.
They make these efforts despite the fact that it’s incredibly dangerous politically. In the latest Kaiser Family Foundation tracking poll, 75 percent of Americans said it’s “very important” to them that the provision of the ACA preventing insurers from denying people coverage because of a person’s medical history remains law, while 72 percent said the same about the provision that bars insurers from charging those people more. That includes majorities of Republican voters (58 percent and 56 percent, respectively). Both those provisions would be struck down if the Republican lawsuit succeeds.
But they’ve had a year since their last “repeal and replace” effort failed, not to mention more than eight years since the ACA passed. Surely they’ve come up with a terrific replacement plan that all Americans will love, right?
Well, no. They haven’t bothered. A few Republican senators slapped together a bill that claims to protect people with preexisting conditions, but it has loopholes big enough to drive a truck through, and they’re not acting on it anyway.
Why haven’t Republicans come up with a genuine plan? There’s a simple answer: They can’t. There is simply no way to construct a health-care plan that satisfies their conservative ideological impulses but is not a political disaster. That’s because on a fundamental level, they don’t actually believe government should regulate the insurance market to protect consumers. They prefer to let the market work things out, and if that means tens of millions of people are left without coverage, so be it.
The problem for them is that the public doesn’t agree — as they found out when they tried to repeal the ACA last year. In fact, since Republicans got control of Washington, momentum for a health-care system with more government involvement has only grown.
However this lawsuit turns out, the attention it gets will reinforce what people already believe about the GOP’s bad faith on health care. The suit claims that since in the tax bill last year Congress reduced the individual mandate’s penalty for not carrying health insurance to $0, that means the mandate itself is no longer valid, and if the mandate isn’t valid, that means the entire law should be struck down. (The Trump administration’s position is that the insurance regulations, including the ban on denials for preexisting conditions, should be struck down, but provisions like the expansion of Medicaid could stay.) According to an analysis by the Urban Institute, if the plaintiffs were to succeed, 17 million Americans would lose their health coverage.
Experts of all political stripes regard the suit as somewhere between ridiculous and comical; law professor Jonathan Adler, a prominent Obamacare opponent, called it “absurd.” But that doesn’t mean the judge, a George W. Bush appointee, won’t accept it. We’ve seen ludicrous arguments against the ACA get a friendly hearing in lower courts before.
This suit’s ultimate destination is the Supreme Court, but before it gets there, a number of things could happen. The district court judge hearing the case could grant the plaintiffs’ request for an injunction that essentially suspends the ACA while the case is in process. He could decline to do that, but then strike down the entire law, or strike down only the protections for those with preexisting conditions. When the case gets appealed to the Fifth Circuit — where 11 of the 16 judges were appointed by Republican presidents, including five by President Trump — the ACA could be struck down there. It’s difficult to know how the Supreme Court would rule; right now Democrats are arguing that Brett Kavanaugh is just itching to take a machete to the ACA and its protections.
If and when any of those things happen, even if the consequences are only temporary, you’ll see a wave of dramatic “Obamacare Struck Down!” headlines, which will (quite appropriately) be accompanied by urgent warnings of the millions of Americans who stand to lose their coverage. Republicans will scramble to assure voters that despite the war they’ve waged against protections for people with preexisting conditions, they really do want to help. But who could possibly believe them?