Trump's Midterm Gift To Dems: A War On Pre-Existing Condition Protections

The Trump administration is calling a key part of Obamacare that protects individuals with pre-existing conditions unconstitutional

If a federal judge in Texas agrees with the Department of Justice's (DOJ) move to not defend the constitutionality of the Affordable Care Act (ACA), millions of Americans could lose their healthcare coverage or face higher premiums for having preexisting conditions, a legal professor wrote Friday in a blog post for The Commonwealth Fund.

Besides urging nullification of the insurance-buying mandate itself, the new government position argued that two of the most popular features of the ACA must fall along with it: the requirement that insurance companies can not deny health insurance to individuals because of existing or pre-existing medical conditions, and the requirement that they can not charge higher insurance premiums based on existing or pre-existing conditions.

The long-shot lawsuit argues that because Republicans repealed the ACA's individual mandate penalty as part of their tax overhaul, all of the remaining law is unconstitutional.

The two provisions, along with Obamacare's requirement that insurers offer comprehensive coverage, have been targets of Republicans seeking to repeal the law and lower premiums.

And Tim Hogan, a spokesman for Health Care Voters, a Democratic group looking to mobilize voters on the health care issue, called the decision a "blatant sabotage of the Affordable Care Act" and "something Republican members of Congress will have to explain to their constituents".

Legal specialists also point out that the Trump administration's failure to defend the federal health law could have long-lasting implications for the rule of law in the nation. Without that form of tax, the new Administration document noted, the ACA mandate to buy insurance would be unconstitutional as beyond Congress's power to regulate interstate commercial activity. In that, lawmakers made a decision to eliminate the tax penalty the ACA requires people to pay if they flout the insurance mandate.

"The decision would cut out the heart of the ACA and completely rewire the health insurance markets", he said. It "has chose to abandon the hundreds of millions of people who depend on" the law, he said in an interview with Kaiser Health News.

Insurers have faced risks tied to the Trump administration's efforts to undermine the Affordable Care Act since his election. He said the department only refused to defend the pre-existing conditions provision as well as one forbidding insurers from charging people in the same community different rates based on gender, age, health status or other factors.

FILE - Stacy Stanford attends a rally to Support Healthy Utah at the State Capitol Building in Salt Lake City on Thursday, March 5, 2015.

The Trump administration's stance is a rare departure from the Justice Department's practice of defending federal laws in court.

Congressional Republicans, who unsuccessfully sought to undo President Barack Obama's signature health care law throughout 2017, added language to the GOP tax bill that ended the controversial tax penalty for those who fail to obtain health care coverage.

The Justice Department brief did not go so far, but it said that Judge Reed O'Connor should void both the mandate and the protections for people with pre-existing medical conditions, while leaving in place the expansion of Medicaid in more than 30 states.

For years, Republicans said they would protect people who suffer from preexisting conditions and were priced out of the individual market.

The major difference is that the Justice Department under President Donald Trump has largely switched sides.

Several other provisions of the law, however, are severable and can still be enforced, the Justice Department said.

America's Health Insurance Plans, the trade association for health insurance companies, supports the pre-existing condition protections under the ACA.

"We agree with the [Trump] administration that a preliminary injunction should not be granted to the plaintiffs". They routinely defend policies they dislike and make arguments they personally disagree with.

Equally notable, three career prosecutors in the department withdrew from the case just before the administration announced the decision not to defend the health care law.

In 2012, the U.S. Supreme Court ruled that the individual mandate - requiring Americans to purchase insurance and exacting a yearly financial penalty from those who don't - was not a constitutional use of the Commerce Clause, but that it was a lawful use of Congress' authority to require taxes.

Recent polling indicates that this could be a political victor for Democrats attempting to recapture at least one chamber of Congress. The case would then go to the 5th U.S. Circuit Court of Appeals, where appointees of Republican presidents hold a 10-5 majority over Democratic appointees. As a result, the entire remainder of the ACA must be upheld, even if the court finds the mandate unconstitutional.

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