Crocodile Tears Over Preexisting Conditions

There is much speculation that the Supreme Court, especially with Amy Barrett on it, will gut or overturn the Affordable Care Act. The challenge to the ACA is scheduled to be heard on November 10. The legal issues involved in the challenge give me a headache, frankly, and I have no idea what the Court might do.

What I do know is that if the ACA is overturned, the insurance companies are no longer constrained from refusing to cover people with preexisting condtions (or “a medical history” in more civilized countries). What I also know is that Republicans have no clue what they might replace the ACA with to keep people with medical histories covered.

Local television is swamped with candidate ads right now, and nearly all of them at least mention health care. Some of them are entirely about health care. Ads from Democratic candidates, especially for the U.S. House, often accuse their Republican opponents of voting to take health care away from people with preexisting conditions. I assume this means the Republican opponent, usually an incumbent, at some point voted against the Affordable Care Act or supports the suit challenging it. (My senators, unfortunately, aren’t up for reelection.)

The Republican incumbents then release their own television ads in which they quiver with indignation that they are being accused of wanting to take health care away from people with preexisting conditions. My goodness, why would anyone accuse them of such a callous thing? But, of course, they never explain how such coverage might be restored if the ACA is overturned.

One such speciment, Rodney Davis (R-IL; the local teevee runs ads for both Missouri and Illinois politicians) is running an ad in which his wife tearfully explains that she has a preexisting condition and her children might have inherited it and it’s just so unfair that her husband’s Democratic opponent (Betsy Dirksen Londrigan) claims he would take health care away from people with preexisting conditions. Here is the ad:

I checked Davis’s record. Yes, in 2017 he voted to overturn the Affordable Care Act. I checked his web page. No, he doesn’t explain what he’s going to offer the private insurance companies to get them to agree to cover people with preexisting conditions. So Mrs. Davis is just spewing bullshit. It’s very sincere bullshit, but bullshit nonetheless.

Republicans have had ten years to come up with a comprehensive replacement for the Affordable Care Act. They have failed. Ending the Affordable Care Act would end insurance coverage for millions and allow insurance companies to deny coverage to anyone they want to deny. Any politician who wants to end the Affordable Care Act has no leg to stand on when accused of denying coverage to people with preexisting conditions.

(In case any righties read this and need this explained to them: Private for-profit insurance companies can only stay in business if most of the people paying premiums do not need expensive medical care. For that reason, insurance companies are reluctant to issue new policies to people who look like they’re going to need care that will cost the company a lot of money. Further, if they can’t deny coverage to such people, what’s to stop everyone from waiting until they get sick to buy an insurance policy? And then the private health insurance business model fails, and the insurance companies all go belly up.

This page from the Kaiser Family Foundation explains how the ACA worked out the problem:

The ACA included both a carrot and a stick to encourage currently healthy people to buy insurance. The stick was the individual mandate penalty, which has since been repealed. The carrot is the current subsidy provided to low and middle income people. Providing comprehensive pre-existing condition protections without some similar mechanism to create a balanced insurance pool would cause premiums to increase substantially and result in an unstable market.

In other words, it might be that after the ACA the insurance companies will continue to offer policies to people with preexisting conditions, but without substantial government subsidies the cost of that insurance will be way too high for most people to pay. So fat lot of good it will do them.

And among all the zombie ideas about health care Republicans have promoted over the years in lieu of a comprehensive health care plan, there is absolutely nothing that honestly addresses this problem.)

Every time I see one of these ads I want to tie the Republican candidate to a chair, shine a light in his face and grill him mercilessly about HOW he is going to guarantee health care to people with preexisting conditions. What is your plan, dude? And if they don’t have a plan, it’s perfectly legitimate for their Democratic opponents to say that they are trying to take health care away from people with preexisting conditions. Because they are. That’s just plain fact. They may pretend even to themselves that’s not what they are doing. But that’s what they are doing.

A few days ago Paul Waldman wrote a column about the secret Republican health care plan.

It’s true, as Democrats insist, that there is no Republican “plan,” if like some kind of nerd you define it as a series of specific steps written down somewhere that lay out a health care policy that will be followed by the government and the country.

But in another sense, Republicans actually do have a plan. It’s not the kind of “plan” that involves legislation or regulations. Here’s what it is: Nothing.

Waldman argues that ending the ACA without a replacement would be a catastrophe for the Republican Party, because the consequences would be terrible. Millions really would lose their health care. People with preexisting conditions would be unable to get coverage again.

Yet, at the same time, they’ve badmouthed the ACA for so long that their voters, who have no clue what they are asking for, demand that the Republican Party oppose it. So the plan is to publicly oppose it while hoping like hell it is never overturned.

Which is why all smart Republicans also want to lose the lawsuit against the ACA that the Supreme Court is scheduled to hear just after the election, just as they lost that 2017 vote. Which they just might, since at least some of the conservative justices — such as Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh — are smart enough to know how dangerous it is for their party.

Poor dopey Republican voters simply accept on face value that nothing awful would happen if the ACA is voided. And they are too stupid to understand that Donald Trump can’t just sign an executive order that people with preexisting conditions must be covered, and that fixes everything. Greg Sargent, a couple of weeks ago:

Two reporters for the Upshot talked to numerous Trump voters and found that their faith in his intention to protect preexisting conditions was rock-solid. …

…“I’ve heard from him that he would continue with preexisting conditions so that people would not lose their health insurance,” one Florida woman told the Upshot of Trump. Her husband has a heart condition.

“I still think he has everybody’s best interest at heart,” a Georgia woman added. “I just cannot see him allowing for preexisting conditions to come back.” She has a son with schizophrenia.

But this bit from the Upshot piece was most revealing:

“There is not a single guy or woman who would run for president that would make it so that preexisting conditions wouldn’t be covered,” said Phil Bowman, a 59-year-old retiree in Linville, N.C. “Nobody would vote for him.”

And that’s why Trump, and Republicans around the country, are denying loudly that they will take health care away from people with preexisting conditions, even though the policies they want to enact would do exactly that.

Trump is benefiting from a perverse dynamic: He isn’t being held accountable — at least by many of his voters — for not offering an actual plan to replace the ACA precisely because wiping out the ACA’s protections, and not having any plan to replace them, seems politically unthinkable to them. And that enables him to politically get away with it — among those voters, anyway.

And down-ticket candidates like Rodney Davis are trying to pull the same scam.

It’s unfortunate that the ACA challenge won’t be heard by the SCOTUS until after the election. And if Trump loses the election and the ACA goes down, his dimwit groupies will assume they’ve lost their health care because Trump lost the election.

On the other hand, if Dems take the Senate and White House and the ACA goes down, this could push even Joe Biden to accept something a lot closer to single payer next time.

6 thoughts on “Crocodile Tears Over Preexisting Conditions

  1. Two points to make…

    First, a 4-4 vote (without Barrett) upholds the lower court ruling which rules the ACA unconstitutional.  I believe that the ACA is going to be ruled unconstitutional with or without Barrett.

    Second, I believe that the main reason Barrett is wanted on the court before the election is so that she can join the other four sitting Federalist Society justices in ruling in favor of all tRump lawsuits relating to the election.  Shutting down the vote counting in Florida in 2000 is going to look like amateur hour in comparison to what the tRump lawyers are going to do before/on/after November 3rd.

  2. To be brutally honest, there *are* no legal issues surrounding the ACA.

    The suit is being brought because the individual mandate's penalty (call it a tax or a fine, doesn't matter) is now 0. No one is being harmed by this – no one should have standing to go to the courts and demand relief.

    Similarly, if there was a gun ban that said no magazines holding more than a million rounds may be bought or sold in the US, no one could sue over that law, unless they had a million round magazine they wanted to buy or sell. You can't sue because you don't like a law; it must *affect* you.

    There's a bit more, mostly about how any theory of standing should fail, but in essence, the lawsuit should have been dismissed, because of a lack of standing.

    Then, there's a question of whether, if the mandate was ruled unconstitutional, it should affect the rest of the law. Congress clearly didn't intend to revoke the ACA; in fact, the reason they zeroed out the penalty was to reduce the amount of government subsidies paid out, reducing spending, and allowing them to claim the savings to cut taxes. Under any good faith interaction, in which standing existed, the courts should say "fine, the mandate is unconstitutional, but that doesn't affect the rest of the law."

    It's true that there was an argument made that the mandate was essential to the law's functioning, that you couldn't remove it, without damaging the law. We now know that was factually incorrect (or, was, at least, it was incorrect once the ACA had been up and running for a while. It might have killed the ACA earlier, but it clearly didn't now).

    Anyway: courts have traditionally tried to avoid overturning an entire law, when only a small piece of it is found unconstitutional. To overturn the ACA on this basis would be *precisely* the sort of "legislating from the bench" that the Republicans used to pretend to hate.

    It's really, really, hard to overstate how this isn't even really a "Hail Mary" style attempt to get rid of it. It's purely bad faith – there will be a time when historians will point to this time and say "even the most specious of sophistries were accepted by the courts, when those judges were Republican appointees," and they won't be wrong.

    A first year law student would likely be laughed out of law school for advancing the sort of argument being used to attack the ACA, and this is why our nation is in *so* much trouble: there are plenty of people who know this, understand this, and nevertheless are willing to lie and pretend that this is all perfectly reasonable and normal – just like letting lots of people die, when it's really not hard to save them.


  3. As I've written before, the RepubliKKKLANS do have a multi-step health care plan:

    1.  Don't get sick.  Especially if you can't afford the treatment or cure. 

    2.  If you get sick and can't afford the treatment or a cure, then die.

    3.  Die quietly.  No one wants to see or hear your cry, curse, complain, or whine.  Suck it up!  Be a mensch!  Or a fe…  A femensch!

    4.  Die quickly.  Unless you have assets that our friends in Big Pharma and Big Med can bleed (pun intended) from your dying carcass and your family.

    This is our GOP health care plan! 

    Oh, and best if all:  IT'S FREE!!!  SUCK IT, LIBTARDS!!!!! 



  4. First, conservative thinking on health care, after you get past the rhetoric, is simple. Everybody is entitled to the best health care they can afford. Business and the very wealthy should not be forced by the federal government to pay for health care that meets a minimum standard. That is AHC – and AHC is clunky and expensive but it's popular. Some aspects are VERY popular, like protecting people with pre-existing conditions. So the GOP wants to drive a stake through the heart of Obamacare, but not be caught doing it. 

    Enter the USSC. Barrett never said she'd kill AHC. So when the decision comes down expect Academy Award performances on a par with, "What?! Gambling in Rick's Lounge? I'm SHOCKED!" And the GOP will universally turn to the Democrats and say, "You need to fix that." And then they will thwart every attempt by the Democrats to do just that. But IMO, they know AHC will go down, they are happy the knife will be in the hands of the USSC, and most deliciously, the GOP won't be in power so they can snipe at any attempts to solve the problem, without taking any responsibility. 

    But there's a problem for Republicans. It's not just health care. The USSC is going to take aim at same-sex marriage and gay rights and Roe v Wade. Maybe soon. Politically, that's not smart because it will generate a backlash but judges think they are immune from the political whims of the peasants. Usually true, but in this case, hundreds of millions will be the victims in redefining health care. Hundreds of millions will be affected by Roe being struck down. People (mostly) have decided to accept that people should decide their own sexual identity and it's wrong for the government to force them to conform or authorize discrimination against people based on their sexual orientation. Let the court decide we're going back to the 1960s and see how popular "moderating" the court gets. 

    BTW – If you go to the last page of this guide from the US Supreme Court, you'll see that the Supreme Court has been organized around the thirteen district courts but some justices do double-duty because there are nine justices and thirteen district courts. Duties are inequitably split up – a plausible argument for expansion to a format and size that the court adopted before, over a century ago. Sounds like "originalism" to me.

  5. It's not really about the ACA at least this time, as others have written upstream. What it's about is plutocracy, rolling back environmental  and worker regs. The right won big, because they can overrule anything Biden and Congress can put forth. For the next decade or two or three.

    What will happen is we will win back the states, some of them, and so it will be the states vs an anachronistic and impotent Federal government. This is how the USA breaks up, at the level of jurisdictions.

    • Any jurisdiction that creates a system that works in any measure (provides services and has an economy) and is not ruled by sanctimonious fake religious zealots within the boundaries of the US of A will be sabotaged and systematically destroyed by the sanctimonious fake religious zealots out of spite because they are sanctimonious fake religious zealots and are deeply insulted by anything that goes against their sanctimonious fake religious zealot story line.

      This is what collapse looks like: a decade or two or three descent into mass grinding poverty with a constant blame game. And racism!


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