Jon Healey: Got a preexisting condition? The Trump administration wants insurers to deny you coverage

In its latest effort to undermine the Affordable Care Act – and in the process, raise premiums for many Americans – the Trump administration is urging a federal judge in Texas to throw out the law’s protections for people with pre-existing conditions.

In other words, the administration wants insurers to be able to deny coverage to the people most in need of it, or to charge them considerably higher premiums than they’re allowed to charge today.

This is jaw-dropping. Even Republicans who’ve complained about Obamacare have been loath to undo the protections for people with pre-existing conditions who are not covered by large employers’ health plans. That’s because the public supports them, and unequivocally so.

A Kaiser Family Foundation poll in June 2017 showed that 70 percent of those polled, including 59 percent of Republicans, wanted Washington to continue barring insurers from charging people with pre-existing conditions more for their coverage. Federal law has long provided such protection for people with health benefits at work; the ACA extended it to people shopping independently for insurance.

But then, the administration has done just about everything in its power to toss older, less healthy people under the bus if they’re unfortunate enough not to be covered by employer health insurance plans.

Through its efforts to depress enrollment in the state Obamacare exchanges, legalize year-round junk insurance policies and allow “association” health plans with limited benefits, it has worked diligently to let younger, healthier people separate themselves from the rest of the market and buy cheaper, less comprehensive policies. Those efforts are expected to drive premiums up significantly for those with pre-existing conditions.

Its latest gambit came Thursday, when the Justice Department partially endorsed Texas’ latest lawsuit against the ACA. The lawsuit focuses on the Supreme Court’s decision in 2012 that upheld the ACA’s requirement that adult Americans carry insurance or pay a tax penalty, saying it was a valid exercise of Congress’ power to tax. Noting that the GOP tax cuts that President Trump signed into law in December eliminated that tax penalty, the lawsuit argues that the law has been rendered unconstitutional.

The Justice Department’s brief asserts that the mandate to buy insurance is indeed unconstitutional now. That’s no big deal – with no penalty, there’s really no mandate. What is a big deal is the department’s contention that because the mandate is gone, the court must throw out the ACA’s two main protections for people with pre-existing conditions: the requirements that insurers accept all applicants (“guaranteed issue”) and that they charge people with pre-existing conditions no more than healthy people in the region (“community rating”).

“Congress found that enforcing guaranteed issue and community-rating requirements without an individual mandate would allow individuals to game the system by waiting until they were sick to purchase health insurance, thereby increasing the price of insurance for everyone else – the polar opposite of what Congress sought in enacting the ACA,” the department’s brief argues.

That’s some legal jiu-jitsu right there. Justice is taking the argument for why an individual mandate was an essential part of the ACA’s insurance reforms, and using it to take down those reforms now that the mandate has been snuffed by Congress. Not that the administration is wrong about what will happen now that the mandate has been killed – what’s wrong is arguing that the havoc Republicans wreaked upon the individual market justifies doing even more harm to the people in it.

Larry Levitt, a senior vice president at the Kaiser Family Foundation, noted that it will take some time for the case to work it’s way through the courts, but the impact of the administration’s briefs could be felt as soon as insurers start announcing their premiums for 2019 – which they will do shortly before the midterm elections.

This is another example of the wrecking ball that is the Trump administration. The ACA has run into some real problems, particularly in states that didn’t bother to establish their own exchanges. But rather than trying to mitigate those problems by spreading costs more broadly, the administration (and congressional Republicans) have focused on Balkanizing the market in ways that help only those who are healthy.

The president is so determined to undo everything associated with his predecessor, he doesn’t seem to care where the chips fall. With the Justice Department’s latest move, the chips would fall on millions of Americans with pre-existing conditions and no employer health benefits. The only question is how long it will take those to people recognize what’s happening to them and why.