An Unconstitutional War on Preexisting Conditions

Since I am a Medicaid recipient due to having a pre-existing condition called Autism, the issue of healthcare is a very important to me. So much so that during the House of Representatives’ passage of the American Healthcare Act deeply troubled me that I was enraged, anxious, and inconsolable about the whole thing for a good part of 2017 summer. Anyway, one of the most important aspects in the Affordable Care Act are the protections for people with pre-existing conditions who consist of 130 million of the US population under 65. Because before the ACA’s 2010 passage, if a citizen had a pre-existing condition, insurance companies could reject them, charge them more, raise the rate once they’re enrolled, or even refuse to pay or cover for essential healthcare benefits treating that condition. And insurance companies often canceled coverage for people who became ill once the policy year ended. In fact, they often required applicants to fill out long questionnaires about their medical histories and made decisions based on people’s health and how much to charge. This led to so many Americans unable to purchase health insurance on the individual market at all. Obamacare outlawed all these practices and set limits on how much these insurers can charge.

On Thursday, June 7, 2018, the Trump administration filed a court brief arguing that Obamacare’s protections for preexisting conditions should be ruled unconstitutional. This opens another front in the White House’s crusade to roll back the law’s core insurance reforms and some of its most popular pillars. Not to mention, intensify the fight over healthcare just as mid-term elections are months away. Since Republicans and the Trump administration have been behind major efforts to sabotage the ACA, we can expect taking away protections for pre-existing conditions won’t do them any favors. For GOP ideas on healthcare have proven to be obviously and deeply unpopular among the American public. In fact, when the American Healthcare Act was up for debate last year, it faced strong opposition by the Democrats, the medical establishment, disability activists, celebrities, religious groups, civil rights organization, and most of the population in every state.

The brief was filed in a case brought by several conservative states arguing that because Republicans in Congress repealed Obamacare’s individual mandate penalty in last year’s tax bill, rendering it unconstitutional along with the rest of the ACA law. The lawsuit argued that without an actual fine for being uninsured, the mandate should be considered illegal under Chief Justice John Roberts’ rationale used to uphold the law in the 2012 lawsuit. He claimed that Congress can’t order people to buy insurance but it could imposing an uninsurance penalty fee, allowing the rest of the law to stand and take effect. Without the financial penalty, the Republican-led argued the requirement to buy insurance can’t legally stand. And since it’s so crucial to Obamacare, the whole law should be found unconstitutional, too. If you don’t understand this convoluted construct, you aren’t alone since neither do I.

Usually, a presidential administration defends the current law, but the Trump administration agreed with the states that the mandate and with it, the law’s rules prohibiting insurers from denying people health insurance or charging them higher rates should now be found unconstitutional. However, the Justice Department lawyers told the court that the rest of the law could stand, including the law’s massive expansion to millions of the nation’s poorest. Should the Trump administration’s argument prevail, insurers could once again be able to flat-out deny Americans insurance based on their health status. Since no amount of federal subsidies would protect them. Medicaid expansion will remain but the private insurance market would no longer guarantee coverage to every American willing to pay for it. Yet, according to a 2016 Kaiser Family Foundation analysis, a favorable ruling could result in 52 million Americans under 65 finding their access to health insurance at risk because of a wide range of pre-existing conditions like diabetes, cancer, autism, allergies, acne, toenail fungus, domestic violence, tonsillitis, bunions, hemorrhoids, pregnancy, and being a woman. Those who may be affected by pre-existing condition clauses may include police officers, firefighters, stunt people, test pilots, and circus workers. Striking down these provisions would be catastrophic and have dire consequences for many patients with serious illnesses. Not only would millions lose their coverage, but their ability to buy health insurance. If you have individual insurance and have suffered so much as a case of asthma, you have every right to freak out over the choices the Trump administration has made.

Of course, this argument makes absolutely no sense. When Congress adopted the individual mandate in 2010, it was an essential part of a broader scheme. But Congress is always free to amend and omit what they previously thought was essential, which is what they did when they nixed the uninsurance penalty. Sure the move was stupid since the individual mandate’s purpose is to get healthy people to buy insurance to spread the risk across a broader population and help keep prices lower for everyone. Get rid of the mandate, insurance premiums spike. But despite their idiocy to get rid of the mandate, they let the rest of the law stand. For a court to now reject that choice would be the worst kind of judicial activism. The Justice Department should’ve given an easy explanation and had a duty to do so. Since there’s a longstanding, bipartisan tradition defending acts of Congress whenever a non-frivolous argument can be made in their defense, which is certainly the case here. This brief squashes that commitment.

Nonetheless, the brief sends a strong signal that the Trump administration believes the central insurance reforms in the ACA should be totally undone. Already, the administration has taken regularly steps to undermine those rules such as expanding short-term plans that don’t have to comply with the reforms. But it’s now seeking a different avenue, outside Congress, to end them for good. Because we all know how congressional Republicans have failed to pass Obamacare repeal last year despite coming astonishingly close (only to be thwarted by 3 Republican senators). Of course, Donald Trump has promised he’d make sure all Americans get better, cheaper healthcare. Yet, he has done nothing to achieve that despite how his supporters give him credit when they benefit from ACA provisions. Still, we should know full well that Trump frequently makes promises to people to get what he wants only to frequently break them. Since he often has no intention to follow through to begin with.

Luckily, the litigation’s success is far from assured since many legal scholars have long thought the lawsuit is stupid. Because the higher courts who’ve upheld Obamacare against existential legal threats on several prior occasions won’t take it seriously. Besides, protections against pre-existing conditions remains one of ACA’s most popular provisions since 130 million Americans under 65 have them. Openly attacking them might lead to severe political backlash for Republicans during the mid-terms. Since it’s an election year Democrats already want to focus on healthcare. The Trump administration’s position doesn’t really change the legal ground much. Since the Democratic-led states had already stepped in to defend Obamacare in the case. Then there’s the fact several career federal lawyers withdrew from the case shortly before the brief was filed since they thought the Trump administration’s arguments were ridiculous. After all, they’re non-political civil servants whose job is to defend federal programs. These lawyers couldn’t sign the brief in good conscience or in consistent with their professional obligations. They defend programs they personally disagree with all the time.

Yet, health insurers are setting their Obamacare insurance rates for 2019. Some plans are already hiking premiums by 30% or more thanks to what Congressional Republicans and the Trump administration has done. This lawsuit and the administration engenders more uncertainty which won’t help. For any time there’s uncertainty about the future, insurers build an extra cushion into their premiums to make sure they get the profits while they can. In addition, removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, lead to higher rates for older Americans and sicker patients, and make it more difficult to introduce products and rates for next year. Some have even withdrawn from the business of selling individual insurance plans or may exit certain areas entirely. Such actions will harm millions of Americans, especially if they don’t qualify for Medicaid and don’t receive health benefits at work. Not to mention, throw the health insurance market further into chaos while eroding the massive ACA insurance gains.

Although the Affordable Care Act isn’t under immediate threat so far, the Justice Department brief represents a blow to its integrity and independence. Moreover, it also illustrates the Trump administration’s contempt for the rule of law, which isn’t surprising. Laws Congress passes and that presidents sign are the laws of the land. They’re neither negotiable or up for debate. If the Justice Department can just throw in the towel whenever a law is subject to a court challenge, it can effectively pick and choose which laws should remain on the books. That’s a flagrant violation of a president’s constitutional duty to make sure the laws are faithfully enforced. Do you want to live in a country where the Justice Department can use the flimsiest excuse to justify declining to defend or enforce a law? Sure there are cases where the DOJ has deviated from principle, they’re extremely rare.

Is there any precedent for this? I’m sure Donald Trump’s defenders will talk about the Obama administration’s decision not to defend the Defense of Marriage Act. But with DOMA, the Justice Department faced a question about the meaning of the Constitution with deep resonance for the values we share as a nation. As we no longer believe it’s constitutional to deny interracial couples the right to marry, the Justice Department concluded that we as a nation, no longer think it’s constitutionally tenable to deny equal rights to LGBT people. Whether you agree or disagree with that decision, it was rooted in the public’s evolving sense on what the Constitution meant.

However, this case with the ACA pre-existing condition protections can’t be more different from DOMA. The question isn’t whether a penalty-free mandate is unconstitutional. This is a critical question on “severability” which doesn’t represent a clash of fundamental constitutional values or defines who we are as a nation. Besides, the conservative states’ argument is laughably weak. It’s unlikely that the Supreme Court will adopt such a flimsy argument these conservative states have advanced which they pulled from their own ass. For now, nobody needs to worry about losing their health insurance since the Trump administration will keep enforcing the ACA as litigation progresses. Yet, by declining to defend that law, the Trump administration has admitted it doesn’t care about a law passed by Congress and signed by the president. In fact, it has contempt for the law and has a baseless argument for casting it aside. A rule by whim should frighten you.

In any case, regardless of what these conservative states argue in this lawsuit, I sincerely believe invalidating protections for pre-existing conditions is cruel and inexcusable. The guarantee that people should be able to buy health insurance regardless of their health history is a popular provision in the divisive ACA with considerable support throughout the political spectrum. So there’s nothing controversial about them. To say that provisions protecting people with pre-existing medical conditions like myself are unconstitutional flies in the face of logic for me. Considering they protect over 130 million Americans, it’s more likely that revoking provisions on pre-existing conditions would be unconstitutional under the 14th Amendment’s Equal Protection Clause, which provides that no state should deny any person within its jurisdiction equal protection under the law. I’m not sure if it means that insurance companies can’t discriminate against people on health status or gender. Yet, since this clause has been used to determine that businesses can’t discriminate against race or sexual identity, I don’t see why not. Because without these protections, over 130 million Americans would be uninsurable in the individual market. Thus, individual mandate or not, health insurance companies can and should be compelled to cover everyone regardless of pre-existing conditions. Again, I’m not sure if this is a sound legal argument. But since I see healthcare as a civil right the government should protect, I don’t see why attorneys shouldn’t argue that point in court. Since the federal government is supposed to protect Americans against discrimination, in which these pre-Obamacare pre-existing condition clauses certainly fall under that. I mean that’s discriminating against sick, old, and disabled people along with women and LGBT people, especially if they’re poor and unable to pay the costs out-of-pocket. And even if I can’t provide a sound legal argument, I can make a case of basic morality that no American should be denied health coverage for any reason whatsoever since I strongly believe that healthcare is a civil right the government should protect. Sure, this might mean that for-profit healthcare is a morally indefensible travesty like it does for me. But if we should determine that provisions protection those with pre-existing conditions are constitutional, shouldn’t an argument based on simple fairness and decency be enough?

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