The lawsuit filed Thursday against Washington Attorney General Rob McKenna could not be more politically transparent, or less surprising.
There has never been any doubt his decision to join a challenge to “Obamacare” together with 25 other state attorneys general would be an issue in his gubernatorial campaign. McKenna supported the litigation over the objections of Gov. Chris Gregoire, his predecessor as AG, and many other Washington officials and residents.
The lawsuit asked the courts to declare unconstitutional the voluminous Affordable Care Act in its entirety, but at the complaint’s core was the challenge to provisions requiring individuals to buy health insurance, or pay a fine. In a March 2010 statement made when he joined the suit, McKenna said he objected to that individual mandate, as well as requirements the states expand Medicaid eligibility.
But he has also consistently said there were parts of the act worth preserving and, specifically, he got included in the lawsuit a provision asking that the section renewing the Indian Health Care Improvement Act be preserved even if the rest of the law was tossed.
That may not be possible. When the U.S. Supreme Court heard the case in March, the attorneys for the federal government and states argued whether any part of the law could stand if the mandate was disallowed.
The lawsuit against McKenna claims he made no attempt to separate Washington’s position from that of the other states seeking overturn of the entire law. He allowed a majority of the other AGs to override his concerns, thereby turning his back on the needs of Washington residents for better access to health care.
In this case, all the plaintiffs are women. Three are cancer patients, one suffers from enduring accident injuries, dozens of others will lose access to free preventive care if the law is overturned.
They want King County Superior Court to order McKenna to file a supplemental brief with the Supreme Court asserting the state’s support for the non-mandate provisions of the health care law. And they want him sanctioned, even disbarred, for not representing the true interests of Washington residents and for saying he supports pieces of the law when his legal position as a participant in the AG lawsuit is that the whole law is bad.
But this case is about politics, not the law. The U.S. Supreme Court, six weeks after an unprecedented three days of oral argument, would see through the partisan motivations behind a late filing from McKenna – willing or court-ordered. How puny they look in the context of the national political stakes.
Also, the attorney who filed the case has a history of litigation aimed at Republican candidates, timed to be as disruptive as possible. And could a list of plaintiffs without a single male play more cynically into the Democratic Party’s efforts to fan a narrative that the GOP is out to get women?
As for McKenna, he threw in with a now all-Republican lineup when he got involved in this case. If the Supreme Court sides with the attorneys general, his victory on constitutional principle will not be much of a salve to the thousands of Washington residents already benefiting from Obamacare.