Trump Administration Move Imperils Pre-Existing Condition Protections

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The Trump administration delivered an early midterms present to Democrats Thursday night when the Justice Department chose to side with 20 GOP states in a lawsuit seeking to gut the core protections of the Affordable Care Act for people with pre-existing conditions.

What it means: If successful, the states' lawsuit would allow insurers to charge much higher rates to people with pre-existing conditions, or deny them coverage altogether, effectively ending the ACA's promise of providing health care for all Americans.

In a brief filed Thursday in federal district court in Texas, the department argues that the individual mandate, as well as the community rating and guaranteed issue provisions of the law, are all unconstitutional and need not be defended in a case now pending before the court.

Until Thursday's filing, the Trump administration had not indicated its position on either this latest lawsuit or the Republican states' effort to block the law while the case moved along. Now that Congress has chose to zero out the penalty, as Republicans did previous year as part of the 2017 tax cut, the pre-existing conditions have to go, too. "Their job is to defend federal programs", Bagley says, noting that he has not talked with any of them about the case. 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 the new suit, California is leading a group of Democrat-led states in defending the law.

The lawsuit argues that with the mandate to purchase insurance still technically in place, but the financial penalty for those who don't abide by it being removed beginning in 2020, Congress' taxing power no longer applies to the provision, leaving it unconstitutional. But insurers said the legal debate alone could cause turmoil in insurance markets this summer.


"It's just one more part of the story of trying to politicize the Justice Department", said Jost, a supporter of the health law. He said he acted after "careful consideration" and with the "approval of the President of the United States".

The Democrats argued that DOJ's refusal to defend the controversial health care law could eliminate protections for millions of Americans with pre-existing conditions and "have profound consequences for patients, the health care system and the American economy".

O'Connor issued an order on May 16 that grants California and other states that support the ACA official intervenor status.

But Sessions also said that he agrees with the Department of Justice's opinion at the time of the 2012 case, that if the mandate is unconstitutional, it is separate from the ACA's other provisions, except those guaranteeing issuance of coverage in the individual and group market.

America's Health Insurance Plans, a major lobby for insurers, said in a statement that although premiums for next year will increase because the individual mandate penalty for not carrying insurance is being zeroed out in 2019, the market has been stabilizing.


The administration does not go as far as the Texas attorney general and his counterparts. The Justice Department says only the protections for people with preexisting conditions are linked to the tax - not the rest of the law, including the expansion of Medicaid.

That's not so surprising considering more than 52 million non-elderly Americans have health conditions that could have rendered them uninsurable prior to Obamacare, a Kaiser Family Foundation analysis found.

"We agree with the [Trump] administration that a preliminary injunction should not be granted to the plaintiffs".

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.

President Donald Trump's legal team has made a move that could kill a key part of the Affordable Care Act, disrupt the individual major medical market in 2019, and leave most of the ACA intact. "But even if the Justice Department's arguments fail, as they should, the administration's violation of its duty to faithfully execute our nation's laws will still raise the cost of health care for most Americans, undermine the economy, and weaken our democracy for years to come". "With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all". 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.


Ironically, the existence of that financial penalty in the law was what had saved the individual insurance mandate from being struck down by the Supreme Court six years ago.

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