The Relentless Republican War on People with Pre-Existing Conditions: The Lone Star Edition

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Texas, et al. v. United States, et al.
An Explainer

Eighteen Republican Attorneys General and Two Republican Governors Filed a Lawsuit to Repeal the Affordable Care Act

In February 2018, Republican state attorneys general and governors from 20 states filed a lawsuit in the U.S. Northern District of Texas. They include:

Texas – Attorney General Ken Paxton

Wisconsin – Attorney General Brad Schimel

Alabama – Attorney General Steve Marshall

Arkansas – Attorney General Leslie Rutledge

Arizona – Attorney General Mark Brnovich

Florida – Attorney General Pam Bondi

Georgia – Attorney General Christopher Carr

Indiana – Attorney General Curtis Hill

Kansas – Attorney General Derek Schmidt

Louisiana – Attorney General Jeff Landry

Maine – Governor Paul LePage

Mississippi – Governor Phil Bryant

Missouri – Attorney General Josh Hawley

Nebraska – Attorney General Doug Peterson

North Dakota – Attorney General Wayne Stenehjem

South Carolina – Attorney General Alan Wilson

South Dakota – Attorney General Marty Jackley

Tennessee – Attorney General Herbert Slatery

Utah – Attorney General Sean Reyes

West Virginia – Attorney General Patrick Morrisey

Then, in June of 2018, the Trump Administration said it would not defend the Affordable Care Act and actually agreed in part with the plaintiffs, arguing that protections for people with pre-existing conditions should be overturned.

The Republican Argument is Not Only Wrong Legally…

The Republican officials claim that now that the Affordable Care Act’s individual mandate fine has been reduced to $0 as a result of the 2017 tax law, the mandate can no longer be considered a “tax.” Because of this change, they argue that the mandate is now unconstitutional and that the entire Affordable Care Act must be struck down alongside it under the principle commonly referred to as “severability.”

Professors Jonathan Adler and Ilya Somin, who opposed the ACA in previous legal cases, joined pro-health care professors Nicholas Bagley, Abbe Gluck, and Kevin Walsh in arguing the Republican legal arguments are wrong. Here is why: when Congress essentially eliminated the individual mandate in 2017, it kept the rest of the ACA intact, showing that Congress clearly believed the mandate was separable from the rest of the law. “[A] court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability,” the scholars wrote.

…It Would Also Have Devastating Impacts on Our Care

This dangerous Trump-GOP lawsuit threatens the care and coverage of tens of millions of Americans. If the courts rule in favor of the Republican attorneys general, critical Affordable Care Act protections would vanish overnight, unleashing chaos in our entire health care system. Here is what could be eliminated:

  • 17 million more people could lose their coverage in a single year, leading to a 50 percent increase in the uninsured rate
  • Protections for 130 million people with pre-existing conditions, if they buy coverage on their own
  • Improvements to Medicare, including reduced costs for prescription drugs
  • Allowing kids to stay on their parents’ insurance until age 26
  • Ban on annual and lifetime limits
  • Ban on insurance discrimination against women and people over age 50
  • Limit on out-of-pocket costs
  • Medicaid expansion currently covering 15 million people
  • Small business tax credits
  • Marketplace tax credits for up to 9 million people

The Trump Administration is Siding With the Republican AGs, and Not With Federal Law or the American People

Typically the Department of Justice defends federal law. In this case, the Trump Department of Justice said it agrees with the Republican state officials that the individual mandate is now unconstitutional. But even though the Republican attorneys general argue the entire ACA should be repealed, the Trump Administration is only asking the court to overturn the insurance reform provisions that protect people from discrimination by insurance companies due to their health status, gender, or age.

Specifically, the Trump Administration is arguing that guaranteed issue and community rating should be overturned. “Guaranteed issue” means insurance companies cannot deny coverage to anyone for any reason. “Community rating” provisions prevent insurance companies from charging someone more because they have a pre-existing condition, or because of their gender. The ACA also limits how much more a person over 50 can be charged compared to a younger person.

Democrats Have Stepped Up in the Federal Government’s Absence

In the absence of the executive branch defending federal law, a coalition of Democratic attorneys general have stepped up to protect our care.

California – Attorney General Xavier Becerra

Connecticut – Attorney General George Jepsen

Delaware – Attorney General Matthew Denn

Hawai’i – Attorney General Doug Chin

Illinois – Attorney General Lisa Madigan

Kentucky – Attorney General Andy Beshear

Massachusetts – Attorney General Maura Healey

Minnesota by and through its Department of Commerce Commissioner Jessica Looman

New Jersey – Attorney General Gurbir Grewal

New York – Attorney General Barbara Underwood

North Carolina – Attorney General Josh Stein

Oregon – Attorney General Ellen Rosenblum

Rhode Island – Attorney General Peter Kilmartin

Vermont – Attorney General T.J. Donovan

Virginia – Attorney General Mark Herring

Washington – Attorney General Bob Ferguson

District of Columbia – Attorney General Karl Racine

A Broad Coalition of Health Stakeholders Oppose This Lawsuit, Compared to a Small Group of Ideological Groups Who Support It

Amicus Brief Signed In Support of GOP Plaintiffs

Amicus Brief Signed In Support of the ACA

Trump’s Department of Justice American Medical Association
Citizens United American Academy of Family Physicians
Downsize DC Foundation American College of Physicians
Gun Owners of America, Inc. American Academy of Pediatrics
Conservative Legal Defense and Education Fund American Academy of Child and Adolescent Psychiatry
American Hospital Association
Association of American Medical Colleges
Catholic Health Association of the United States
Federation of American Hospitals
American Cancer Society/American Cancer Society Action Network
American Diabetes Association
American Heart Association
American Lung Association
National Multiple Sclerosis Society
American Public Health Association
Public Health Scholars
Families USA
Community Catalyst
National Health Law Program
Center for Public Policy Priorities
Center on Budget and Policy Priorities
AARP
SEIU
Small Business Majority Foundation
America’s Health Insurance Plans (AHIP)