Published: Mon, June 11, 2018
Medical | By Marta Holmes

Justice Department move on health law has risks for GOP

Justice Department move on health law has risks for GOP

The Trump administration's decision to abandon the Affordable Care Act in an ongoing court challenge could affect some of the most popular pillars of the law - further intensifying the fight over health care in the middle of an election year. But it did say Thursday that because the individual mandate is unconstitutional, so is another, more popular part of the law: protections for people with pre-existing conditions.

Republicans have been trying to dismantle the Affordable Care Act - a centerpiece of President Barack Obama's legacy - since it was enacted in 2010 without any Republican votes.

Andy Kim, a former Obama administration staffer, is making coverage of pre-existing conditions and access to affordable health care a key part of his campaign against Rep. Tom MacArthur in Central New Jersey, the author of the Obamacare repeal bill that passed the House but failed in the Senate a year ago.

In 2012, the Supreme Court upheld the individual mandate as a legal use of Congress's taxing power. If the Justice Department's analysis is ultimately persuasive, however, other parts of the law, including Medicaid expansion, could stay in place.

"The DOJ agrees with Texas that the individual mandate is unconstitutional once the tax penalty was zeroed out, and if it is struck down, the guaranteed issue and community ratings provisions go with it", said Jost.

Before the Affordable Care Act became law, insurance companies routinely declined health insurance coverage to people who had ongoing medical conditions or recent illnesses.

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The filing declares unconstitutional the so-called individual mandate-which requires nearly all Americans to purchase health insurance or pay a "tax" if they don't-and calls for several elements of ACA to be invalidated. Yet he has granted standing to a group of 17 Democratic-led states that filed a brief on Thursday night arguing for the preservation of Obamacare, and will no doubt give them a fair hearing.

"Tonight, as the president and his administration launch their most unsafe sabotage effort yet, we are seeing just how far Republicans are willing to go in their quest to undermine the American health care system", said Brad Woodhouse, campaign director of Protect Our Care, an advocacy group staffed with many Obama administration alums.

"There is no doubt that Republicans are responsible for the rising cost of healthcare premiums and the high likelihood that many will no longer be able to afford basic care at all, and they will face serious blowback in the midterms", the House Democrats' campaign operation said in a statement. Even President Donald Trump called it one of the law's "strongest assets" during an interview with "60 Minutes" shortly after he won the election.

While they provide major protections to those with pre-existing conditions, they also have pushed up premiums for those who are young and healthy.

"It's, simply put, an attack on the health care that millions of Americans have come to count on, and California, being the most successful state in implementing the Affordable Care Act, stands to lose perhaps more than anyone else".

Attempts to repeal it in Congress have failed, but opponents of the law have also filed scores of lawsuits challenging various provisions.

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"Zeroing out the individual mandate penalty should not result in striking important consumer protections", America's Health Insurance Plans said in a statement.

"Just read the brief of the states that intervened to defend the law".

Just hours before the Justice Department officially withdrew from the case, three of the staff attorneys who had been working on it withdrew.

But Justice Department lawyers do argue that with no penalty for not having coverage, the federal government can not make health insurers cover sick consumers or prohibit insurers from charging sick consumers higher premiums, as was routinely done before the health care law was implemented.

The issues in the court case are unlikely to be resolved quickly, but some experts said the added uncertainty could prompt insurers to seek higher premiums in 2019 for health plans sold to individuals. But Martin S. Lederman, a Georgetown University law professor who was a Justice Department official in the Obama administration, called the mass withdrawal a likely sign of distress.

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. 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.

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The Texas case will be decided first by O'Connor, a conservative appointee of President George W. Bush.

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