Preexisting Conditions Could No Longer be Covered

The Trump administration filed a brief in federal court on Thursday that it would no longer defend crucial provisions of the Affordable Care Act (ACA) that protects consumers with preexisting medical conditions.  The move also upends a longstanding legal and democratic norm that the executive branch will uphold existing laws.

Upon the announcement that the Justice Department will not defend the ACA, three justice attorneys involved in the case – Joel McElvain, Eric Beckenhauer and Rebecca Kopplin – withdrew.  Though the DOJ will not defend the law, a group of 17 Democratic-led states won standing in a case to argue for the ACA’s preservation.

The original case is being heard in an appellate court in Texas. Twenty states have joined in on a lawsuit claiming, that “the Supreme Court upheld the ACA in NFIB v. Sebelius only because the individual mandate was a tax and that the Congress has now repealed the penalty for going without insurance. As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. Because it is unconstitutional, the courts must invalidate the entire ACA.”

While yes, both attempts to repeal the ACA a year ago failed, the administration has been successful in causing volatility in the market. Upon passage of the $1.5 trillion tax bill passed in 2017, one of the provisions was eliminating the tax penalty for not having health insurance. This measure isn’t the first major hit the ACA has taken around the time insurers decide what premiums will be. Larry Levitt, a Kaiser Family Foundation senior vice president said “when insurance companies face uncertainty, they increase premiums.

Before the administration announced its choice to not defend the ACA, a report by the Congressional Budget Office stated that premiums will jump 15% next year and the estimated number of uninsured will rise by 5 million people by 2027, bringing the total to an estimated 35 million. This 15% increase is just for the ACA’s silver plan. Some reports state that health insurance premiums could increase by as much as 50%. Insurers point to the repeal of subsidies to insurers and the repeal of the individual mandate.

If this case ends up with the dismantling of the preexisting condition clause, the uninsured rate will be unknown. As of 2016, in study by the Kaiser Family Foundation, 52 million Americans, roughly 27 percent of adults under 65 years old have a pre-existing condition that would make them uninsurable before the ACA.

Repeal of the individual mandate is not the worst-case scenario. If those who filed the lawsuit win, ultimately the ACA as we know it will be gone, resulting in 23 million people becoming uninsured over the next decade, 14.5 million fewer people with have Medicaid/CHIP and 8.8 million fewer people will have private non-group coverage.

These are trying and uncertain times for the US healthcare system.  The fight for coverage continues, only not in the halls of congress, but inside the courtroom.