Trump Administration Seeks to Gut Obamacare’s Protections for People With Pre-Existing Conditions

The Trump administration delivered an early midterms present to Democrats Thursday night when the Justice Department made a decision to side with 20 GOP states in a lawsuit seeking to gut the core protections of the Affordable Care Act for people with pre-existing conditions.

Since Congress repealed the penalty for not having insurance in its tax reform package past year, much of the rest of the insurance statute becomes unconstitutional in 2019 and must be "struck down", attorneys for the Justice Department said in a court filing Thursday. "As of 2019, therefore, the individual mandate will be unconstitutional under controlling Supreme Court precedent holding that 'the federal government does not have the power to order people to buy health insurance'".

Attorney General Jeff Sessions, in a Thursday letter to House Speaker Paul Ryan, said while the administration has traditionally defended the constitutionality of such provisions, he has decided "this is a rare care where the proper course is to forgo defense". It also says that provisions shielding people with medical conditions from being denied coverage or charged higher premiums and limiting how much insurers can charge older Americans should fall as well.

Texas says that without the fine in place the requirement to have health insurance is unconstitutional and that the entire law should be struck down as a result. For instance, it did not go after the creation of health insurance marketplaces, premium subsidies for low-income members and Medicaid expansion.

The administration said it agrees with Texas that the so-called individual mandate will be unconstitutional without the fine.

The major difference is that the justice department, under Donald Trump, has largely switched sides.

Congressional Republicans, who unsuccessfully sought to undo President Barack Obama's signature health care law throughout 2017, added language to the GOP tax bill that ended the controversial tax penalty for those who fail to obtain health care coverage. The filing is part of a lawsuit brought by the state of Texas and a coalition of other Republican-led states that are challenging Obamacare's constitutionally. He said the department only refused to defend the pre-existing conditions provision as well as one forbidding insurers from charging people in the same community different rates based on gender, age, health status or other factors.

"The question is, what does this do to insurance markets now?" said Jost.

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