Next week, while President Donald Trump’s Supreme Court nominee, Judge Brett Kavanaugh, fields questions at his confirmation hearings, a judge in a North Texas federal district court will hear oral arguments in a landmark health care case on which the next Supreme Court justice could ultimately rule. The case, brought by 20 Republican attorneys general, challenges the constitutionality of the Affordable Care Act (ACA), including the law’s protections for people with pre-existing conditions and limitations on price gouging older Americans. Congressional Republicans’ Tax Cuts and Jobs Act eliminated the ACA’s individual mandate, opening the door for the lawsuit. In June, Attorney General Jeff Sessions announced that President Trump personally instructed the U.S. Department of Justice not to defend the specific parts of the ACA against this new legal attack—a dramatic departure from precedent.
When Justice Anthony Kennedy announced his intent to step down from the Supreme Court that same month, experts began sounding the alarm about the threat the case and a new conservative justice could pose to the roughly 130 million Americans with pre-existing conditions. One expert even said, “Of all of the actions the Trump administration has taken to undermine individual insurance markets, [the decision not to defend the law in court] may be the most destabilizing.” Another expert said the lawsuit could result in:
… a return to what the individual market looked like before the ACA, where insurers would require applicants to fill out long questionnaires about their medical histories, and make decisions based on people’s health and how much to charge.
Given Kavanaugh’s predilection for allowing partisan politics to influence his judicial rulings, it’s understandable for senators and the public to be worried about Kavanaugh upending the insurance markets and these health care protections. In 2012, for example, Kavanaugh claimed that the individual mandate was “unprecedented” as well as “jarring” and praised a judicial decision that would limit Congress’ ability to regulate commercial activity such as health care. This opinion was well-outside the legal mainstream at the time but echoed the beliefs of partisan political organizations working to undermine the ACA.
Rather than take this threat to the ACA seriously, some senators, such as Sen. Susan Collins (R-ME), have mocked Senate Democrats’ focus on Kavanaugh’s potential impact on people with pre-existing conditions, suggesting that the concern is a political calculation, not a genuine policy concern. But the threat is not fictional. Legislation that a group of 10 Republican Senators introduced this week signals they understand the threat—even if they refuse to publicly acknowledge it.
This legislation disingenuously claims to protect people with pre-existing conditions because it would forbid insurers from denying coverage or charging patients more because of a person’s pre-existing conditions or health status. But the protections this bill would include are worthless due to loopholes. For instance, insurers could sell a policy to a person who has had cancer, but they wouldn’t have to cover any further cancer treatments. Insurers could also charge people differently based on their gender, age, or occupation.
Additionally, the bill does nothing to protect the ACA’s essential health benefit protections, which are also under attack in the litigation. These gaps are why the legislation has been called a “fraud,” and experts have warned that it excludes necessary benefits to help people with health needs get care that they otherwise would be unable to afford. A previous CAP analysis estimates that without these protections, individuals with common forms of cancer could face a premium surcharges in excess of $72,000, while coverage for pregnancy-related services could cost women an additional $17,000. Sen. Collins even admitted that the proposal does not do enough to protect people with pre-existing conditions.
Some in the media have suggested that the proposal was crafted to assist Republican senators in the closing months of the election cycle. However, it is clear that this is really an effort by Senate Republicans to shield themselves from the very real threat that a vote to confirm Kavanaugh is a vote to take protections away from people with pre-existing conditions.
First, if these protections were truly immune from any legal threat, there would be no need for legislation that purports to protect sick people, as the protections are the law of the land. Second, if members wanted to preserve protections for people with pre-existing conditions, they could voice their opposition the lawsuit and demand the Department of Justice reverse course and defend the ACA in federal court. Third, the public doesn’t believe that a nominee handpicked by a president who—from his first day in office—has supported legislative, administrative, and, now, judicial efforts to gut the ACA will indeed be a pro-health care justice. Finally, only one of the 10 original sponsors of the legislation is up for re-election, so the suggestion that this bill is more about politics than mitigating the damage this lawsuit could sow is absurd—particularly given that the legislation is co-sponsored by members who will play a critical role in the judicial confirmation fight. This includes several members of the Senate Committee on the Judiciary, who are reviewing hundreds of thousands of documents from Kavanaugh’s record that have been withheld from the public.
No person should have to watch a loved one fighting for their life be unable to afford treatment. This is why 93 percent of Americans want the Supreme Court to uphold protections for people with pre-existing conditions. No senator that has promised to protect sick Americans can use this latest proposal to justify a vote in support of Kavanaugh’s nomination.
Jake Faleschini is the director of the Federal Courts Program at the Center for American Progress. Colin Seeberger is the associate director of Media Relations at the Center for American Progress.