Republicans were already worried that the nation’s health care woes could sink them in 2018. Now they feel like the Trump administration just tossed them an anvil.
The Department of Justice’s announcement Thursday night that it will take aim at Obamacare’s most popular provisions — a ban on insurance companies discriminating against people based on pre-existing conditions, and limits on how much insurers can hike premiums for older Americans — will be ammunition Democrats can use this November.
The long-shot lawsuit from 20 conservative states, now endorsed by the DOJ, argues that because Republicans repealed the Affordable Care Act’s individual mandate penalty as part of their tax overhaul, the mandate itself can no longer be considered a tax — the basis on which the Supreme Court upheld it in 2012. And, the DOJ added, since the ACA’s rules on pre-existing conditions are “closely intertwined” with the mandate, they too must be struck down.
With some distance from last year’s failed attempts to repeal Obamacare, Republicans had begun growing hopeful that good economic news and some improving poll numbers might save them in the midterms. But they now fear that Trump has handed voters proof positive that his party doesn’t care about those with preexisting conditions.
“This is definitely the most popular aspect of the Obamacare legislation, and it clearly creates an opening for Democrats going into the final months of the election year,” GOP strategist Ken Spain, a former communications director at the National Republican Congressional Committee, told TPM.
Poll after poll has found that protecting people with pre-existing conditions is the most emotionally potent health care argument for voters. A survey conducted by the Democratic firm Hart Research Associates for Protect Our Care this past January and shared with TPM on Friday found that the issue was one of the most effective in the healthcare debate: 63 percent of voters had “very major concerns” and another 20 percent had “somewhat major concerns” with the GOP’s efforts to repeal pre-existing condition protections. Among independents, that number rose to 73 percent with “very major concerns.” In other polling, voters routinely identify healthcare as the biggest issue they care about.
Even before the news broke about the DOJ’s legal filing, Democrats were running ads calling Republicans liars and hypocrites on pre-existing conditions. This one aired against Rep. Fred Upton (R-MI) just weeks ago:
Now, thanks to the Trump administration, the issue is poised to come back into the headlines at the worst possible time for Republicans. Most insurers inform their customers about their new insurance rates in October, just weeks before voters go to the polls. Insurance rates were already set to rise next year, in large part because of Republicans’ repeal of the individual mandate, and insurers say Trump’s latest move could push premiums higher still.
“Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019,”America’s Health Insurance Plans (AHIP), health insurers’ major lobbying group, warned in a Friday statement.
Reviving a painful fight
Republicans made it abundantly clear during last year’s fight to dismantle the ACA exactly how sensitive they knew voters were about the pre-existing condition rules: The one constant in the month-long debate was their repeated promises not to touch them.
“There is no way the Congress is going to repeal preexisting conditions,” vowed Sen. Lamar Alexander (R-TN), the top Republican on the Senate committee that handles health policy, at the outset of the effort.
Though the repeal bill the GOP-controlled House took up in March of 2017, the American Health Care Act, nominally preserved protections for pre-existing conditions, it would have forced many patients with health issues to pay far more out of pocket, as insurers could refuse to cover many services and could bring back annual and lifetime limits on care. That bill was pulled.
The version hammered out months later gutted the ACAs’s community rating rule, allowing insurers to charge more based on age and health status. Still, President Trump and GOP lawmakers continued to falsely claim otherwise. “It will be every bit as good on pre-existing conditions as Obamacare,” Trump told reporters in May, though after the bill narrowly passed, he slammed it as “mean” and encouraged senators to craft “more generous, more kind” legislation.
The Senate then struggled for months to bridge the gap between vulnerable GOP moderates who wanted to protect the ACA’s Medicaid expansion and consumer protections, and hardliners who wanted to repeal the ACA “root and branch.” After several failed votes, Sen. Bill Cassidy (R-LA) got involved in a drawn-out public fight with late night host Jimmy Kimmel over whether people with pre-existing conditions — like Kimmel’s infant son, born with a heart condition — would be protected under his repeal bill. That bill would have allowed states to waive many of Obamacare’s key protections, including those for pre-existing conditions. Even after several revisions, the Congressional Budget Office reported that millions more people would become uninsured under Cassidy’s bill, and the effort failed to pass the Senate.
Now, a year later, after receiving significant political blowback for these repeal attempts, GOP lawmakers are once again in the hot seat as the Trump administration tries to use the courts to get rid of the ACA protections they were unable to abolish through Congress.
“If I were a House Republican I would have woken up to my morning newspaper and thrown it against the wall. He just made clear the thing they’ve done their best to hide from,” said Democratic strategist Jesse Ferguson. “They’ve done everything from policy obfuscation to rhetorical gymnastics to avoid admitting their repeal agenda would gut these protections for people with preexisting conditions. And they thought they’d gotten away with it — except for that meddlesome Trump.”
A gift to Democrats
As Republicans squirm, Democrats are pouncing on the administration’s attempt to have the ACA’s most popular protections ruled unconstitutional.
By Friday morning, candidates in competitive House and Senate races were blasting out statements on the legal filing and attacking their GOP opponents for siding with President Trump on health care policy.
“This is the latest deliberate and harmful action taken by the Administration to create chaos and uncertainty and drive up health care costs for families,” said Sen. Joe Donnelly (D-IN), who faces a tough reelection fight in a state Trump won handily. “I urge the Administration to stop undermining and sabotaging our health care system.”
With their eyes on retaking at least one, if not both chambers of Congress this fall, national Democratic groups are confident that the issue will be a major political liability for the GOP.
“No issue is more personal than health care, and this is a perfect storm of two of the most personal aspects of health care coming together: skyrocketing premiums and the loss of protections for people with pre-existing conditions,” Tyler Law, the national press secretary for the Democratic Congressional Campaign Committee (DCCC), told TPM. “We know voters are paying close attention to this, because there is not a district in the entire country where health care is not a major issue.”
Republican strategists tell TPM that they’ll work to counter these attacks by pointing to Obamacare itself as the underlying problem.
“Democrats destroyed the health care system as we knew when they rammed Obamacare down our throats and now all they can talk about is moving to a single-payer health care system,” said NRCC spokesman Jesse Hunt in an email on Friday.
But others admitted that the party in power is the one that shoulders the blame — and while Democrats took their lumps on health care at the ballot box from 2010 to 2016, it’s now Republicans’ turn.
“Whoever tends to be disruptive on healthcare tends to get punished,” former Rep. Tom Davis (R-VA), a former NRCC chairman, told TPM. “When Republicans come in and try to undo Obamacare, they’re being disruptive.”