The Trump administration’s decision not to defend Obamacare against a high-profile lawsuit could open Pandora’s Box and prevent millions of Americans who suffer from cancer, diabetes and other diseases from obtaining affordable health insurance, patient groups said Wednesday.
Advocates plan to file a brief in Texas on Thursday that says the federal courts should not second-guess Congress’ decision to zero out penalties tied to Obamacare’s “individual mandate,” while retaining parts of the law that allow sicker Americans to obtain insurance and pay the same premiums as healthier people.
The brief will feature data that suggests people who can afford coverage enjoy longer lives.
“If people don’t have real health insurance — comprehensive health insurance — they die,” said Mary Rouvelas, senior counsel at the American Cancer Society Cancer Action Network.
The groups are pushing back at the Justice Department, which told U.S. District Court Judge Reed O’Connor he should strike twin protections — known as “guaranteed issue” and “community rating” — if he sides with GOP-led states that say the interlocking mandate to hold insurance is no longer constitutional.
The crux of the argument is that since the mandate penalty is zero, Congress is no longer using the taxing authority that Chief Justice John G. Roberts Jr. relied on to uphold the law as constitutional in 2012.
The protections for sicker Americans are supposed to work in tandem with the mandate, which was included to prod healthier people into the marketplace and shield insurance against big losses, since they couldn’t impose higher premiums on those with preexisting conditions.
Republicans are being pushed to take sides in the emerging case, which is reviving last year’s debate over how to balance market-oriented health reforms with the popular protections.
Democrats hoping to retake Congress think the issue will create the same kind of PR headaches that dogged the GOP last year, as it failed to repeal and replace Obamacare.
“They continue their stealth attack on the Affordable Care Act and its benefits for millions,” House Minority Whip Steny Hoyer, Maryland Democrat, said.
Health Secretary Alex Azar sidestepped the issue Tuesday, telling Congress the Justice Department took a “legal position” as opposed to one steeped in policy.
Senate Majority Leader Mitch McConnell said his caucus is still in favor of protecting people with preexisting conditions and shifted blame onto Democrats, who walked away from an Obamacare stabilization package last year. He noted the administration is working on its own plans to expand cheaper options.
Yet Senate Health Committee Chairman Lamar Alexander bluntly opposed the administration’s position, saying he “didn’t hear a single senator say” they wanted to scrap the protections when they zeroed out penalties tied to Obamacare’s “individual mandate” in last year’s tax overhaul.
“The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard,” the Tennessee Republican said.
Likewise, Ms. Rouvelas said the patient groups plan to “make the clear case that we feel the current law should stay the way it is.”
“It is not the role of the courts to second-guess the legislature,” Ms. Rouvelas said.