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Amid legal attack on key health-law provision, uncertainty and uproar

Why We Wrote This

The latest legal battle over "Obamacare" pits the Trump administration against Republicans in Congress, highlighting a value that spans partisan divides: concern for helping people with "preexisting conditions."

Elijah Nouvelage/Reuters
Dr. Larry Kwan speaks with an employee during a doctor's visit at a Cisco health clinic at Cisco Systems in San Jose, Calif., March 22. Many Americans have health insurance through an employer plan, or through Medicare and Medicaid. But the Affordable Care Act has expanded insurance coverage for many who have preexisting conditions.

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The newest rift within GOP ranks is surprising. President Trump himself has in the past supported protecting insurance for people with preexisting conditions, and so have many congressional Republicans. Yet now his administration has sided with a lawsuit by 20 states seeking to overturn the Affordable Care Act’s provisions to keep insurance costs from surging when people are sick or need costly medications. It’s unclear if the lawsuit will succeed, but suddenly the fate of a health-care policy affecting millions of Americans – and one that’s widely supported by Republican as well as Democratic voters – seems uncertain. One of those people, Tory Dake in Georgia, has seen her mom struggle to support her and send her to college while scrambling to maintain insurance coverage. Ms. Dake’s own preexisting condition helped shape her aspiration to become a doctor in a clinic where others “don’t have to worry about insurance.” Referring to her mom, she says, “being able to see the struggles she has gone through for me and my sister has been the biggest motivation.”

Robin Dake recalls a time when health insurance was financially out of reach for her and her two daughters ​– with the prospect of premiums of about $900 a month.

 “I couldn't afford it. I simply had no insurance for a while. And that's pretty terrifying as a mom,” she says.

The arrival of the Affordable Care Act (ACA) changed things in a big way. Even though one of her  daughters has what’s known in insurance jargon as a “preexisting condition” – in her case a seizure disorder – Ms. Dake has been able to  afford insurance as a self-employed single parent in rural Georgia.

Now, her daughter, Tory, who is studying to be a doctor, dreams about opening up a clinic one day where people “don’t have to worry about insurance.” Currently, just one of her own medicines can cost up to $600 a month or more without insurance. When there's a glitch with her insurance, her pharmacist makes sure to get her at a least one dose.

“It's been a battle with the insurance companies and the policies in general,” she says. “And it's just so frustrating.” 

Now the ACA's protection against sky-high insurance rates faces a new threat. Twenty conservative states are seeking to overturn the ACA in court. They argue it is no longer constitutional now that a core provision, the threat of a tax penalty for people who don’t get insurance, has been repealed.

And this month, the Trump administration’s Justice Department sided partly with those states, saying it would not defend the provisions aimed at safeguarding people with preexisting conditions.

The administration’s shift not only adds to legal uncertainty over the law, it also has stirred a political uproar, injecting an issue into congressional election campaigns that many Republicans didn’t want or expect. In turn, the result may actually be to galvanize already-strong public support for this aspect of the law known as Obamacare.

“The strategy behind this is rather bizarre. It's hard to really understand the political reasoning for why the administration put forward the position that they did,” says Sabrina Corlette, a professor at Georgetown University's Center on Health Insurance Reforms in Washington. “It certainly seemed to take a number of members of Congress by surprise.”

Lawsuit prompts sketicism

This week a number of Republican lawmakers have voiced their strong support for protecting insurance rates for people like Tory Dake, possibly signaling that the court case itself won’t ultimately determine the nation’s law on this issue.

The Justice Department’s position “is unbelievable,” says Ed Dolan, an economist at the Niskanen Center, a free-market oriented think tank based in Washington. “The preexisting condition provision is the single most popular part of Obamacare.”

To Tory, politicians who don't support the provision seem to lack a complete understanding of what it means to “budget when you’re tight on money” or have a preexisting condition, blaming the individuals who have them instead of looking for ways to help. Being exposed to people with both those challenges can lead people, of all political backgrounds, to cultivate more empathy, she says.

In fact, the provision is perhaps unique as a part of the law that “has strong majority support from both Republicans and Democrats,” adds Mr. Dolan, who has developed a conservative proposal of his own for ensuring universal health-insurance coverage for Americans.

According to a Kaiser Family Foundation poll from a year ago, 7 in 10 Americans wants the federal government to continue to bar insurance companies from charging more for people with preexisting health conditions. That includes 59 percent of Republicans, 68 percent of independents, and 84 percent of Democrats. A CBS News poll last year found even stronger support than that, including 8 in 10 Republicans.

The lawsuit to overturn the ACA may be a legal longshot. That’s the case whether the goal is to toss out the whole law (as Texas and other states have urged) or part of it (the Justice Department view), some experts say.

“I would be surprised” if the legal challenge succeeds, says Chris Pope, a health policy expert at the conservative-leaning Manhattan Institute in New York. He notes the chorus of GOP lawmakers including Sens. Lamar Alexander of Tennessee, and Bill Cassidy of Louisiana, who have said such an outcome is not what they intended when legislating.

On June 14 a group of legal experts, some of whom in the past have stood in opposing camps over the constitutionality of Obamacare, joined in filing an amicus brief arguing that the states lack legal grounds for their case.

The issue of legislative intent could be key. The states' lawsuit points to initial visions of the ACA as a unified whole, which some argued would fall apart if any key piece is removed. The amicus brief says actions by Congress under President Trump show an intent for much of the law to remain in place, even as Congress was removing the law's threat of tax penalties for not buying insurance.

Still, it remains to be seen how federal judges will rule in the initial case (to be reviewed a conservative judge in Texas) or on appeal.

Americans wonder: What's next?

For now, many Americans are concerned about the risk to their insurance. And it’s not just people diagnosed with preexisting conditions, it’s also those who worry they could fall into that category in the future.

“I think people are starting to realize that just because they don't have something wrong with them today something could be wrong with them tomorrow,” says Ryanne Rizzo, a Detroit-area independent contractor. “It doesn't seem fair that people can be bankrupted or completely have their lives in shambles because they’re sick.”

Her own family was shaken when her teenage daughter was seriously injured in a car accident. During her daughter’s lengthy recuperation, Ms. Rizzo lost a job and started going through a divorce (which included moving off her husband’s health-insurance plan).

She was able to enroll for ACA coverage right away.

Her daughter, now 16, has recovered but still has preexisting conditions related to the accident.

“I wish it wasn’t a political issue,” Rizzo says. It “definitely affects the way I vote. It’s the number one concern I have … You can't work. You can't go to school. You can’t lead a meaningful life at all if your health is not there, and your child's health is not taken care of.” 

Health-care a voter priority

Her view hints at a wider reality: Health care is one of the highest-priority issues for US voters, as the nation approaches mid-term elections in which control of Congress is at stake.

The rift within GOP ranks is surprising. President Trump himself has supported protecting people with preexisting conditions in the past. And the administration acknowledges that it’s unusual for the Justice Department to withdraw support for an existing federal law. Health and Human Services Secretary Alex Azar said June 12 that the new legal stance is not a "policy position" but a constitutional and legal one. 

Some Republicans in Congress support the legal arguments used in challenging the ACA, and say a successful lawsuit could help Americans. “Consumers will have more choices, more competition, more options, more individual freedom and lower premiums,” predicted Sen. Ted Cruz of Texas, in an interview with Vox.com.

Obamacare has been controversial from its inception, with critics saying the law has pushed up health care costs, limited choice of doctors, and steered consumers young and old toward one-size-fits-all plans. Even supporters see room for the law to be improved, while defending its basic approach for trying to make strong coverage affordable to all.

While personal health challenges vary in severity, as many as 51 percent of Americans have a preexisting condition, using a definition similar to the underwriting criteria used by insurers prior to the ACA. According to one narrower definition the figure is 23 percent.

But for Robin and Tory Dake in Toccoa, Ga., the issue goes beyond statistics, even ones as large as that.

“I have a pretty deep spiritual life and to me these issues are spiritual issues,” says Robin. “They are about how we take care of each other, how we take care of our neighbors. I don't think it's right to just want to take care of my family. I think that I need to be part of taking care of the human family.”

Although neither mom nor daughter defines themselves as very political, their travails over health insurance have bonded them in a certain amount of activism. Sometimes they talk to conservative neighbors or, for Tory, campus friends about the ACA.

“My mom is really my major motivator. Being able to see the struggles she has gone through for me and my sister has been the biggest motivation,” Tory says. “We've been on a few marches. From my point of view I tend to have a broader view of equal rights for everybody and not just particularly in health care.”

And that makes her passionate about the issue now at stake nationally.

“To put people in that situation where they can't heal, they can't have a normal life because they can't afford it, I don't agree with that at all,” says Tory, “I think that rises above the struggles of government.”

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