Trump Administration Hands Democrats A Gift On Pre-Existing Condition Coverage

The Trump Administration's new legal position on coverage for people with pre-existing conditions could pose political problems in the fall.

As James Joyner noted in his post this morning and I noted in a post on Monday, the Department of Justice has largely joined in on a lawsuit filed by Texas and several other states to undo the Affordable Care Act. The basis for the lawsuit and the Department of Justice’s argument, of course, rests on the fact that the tax penalty associated with the individual mandate will be eliminated beginning in 2019 thanks to the Tax Cut And Jobs Act, the tax reform bill passed last December, the rest of the PPACA cannot withstand a challenge under the Constitution. The states, of course, take the position that the entire law should be thrown out based on the 2011 Supreme Court decision that upheld the mandate based solely on the taxing power granted to Congress in Article I of the Constitution. The Administration, on the other hand, takes the position that most of the law can still withstand scrutiny but that the effective end of the mandate means that those provisions of the law that mandate coverage for people with pre-existing conditions and bar charging such persons higher premiums are so inseparable from the mandate that they too must be struck down. Even with that limited approach, though, some projections indicate that even just removing the protections for pre-existing conditions could end up impacting other parts of the law.

While the legal basis for both arguments is weak at best, the biggest problem that Republicans face from these actions could end up being political. On Tuesday, for example, Secretary of Health and Human Services Alex Azar faced tough questioning from Senate Democrats who put him on the spot over the legal position taken by the Administration:

WASHINGTON — Democratic senators blistered President Trump’s health secretary on Tuesday, telling him that the Trump administration’s efforts to undo health insurance protections for people with pre-existing conditions made a mockery of the president’s campaign to rein in prescription drug prices.

The secretary of health and human services, Alex M. Azar II, told Congress that he would be glad to work with lawmakers on legislation — “alternatives to the Affordable Care Act, modifications of the Affordable Care Act” — to provide access to insurance for people with pre-existing conditions.

The decision regarding pre-existing conditions is “a constitutional and legal position, not a policy position,” Mr. Azar told the committee.


Senator Patty Murray of Washington, the senior Democrat on the health committee, said on Tuesday that she was appalled that the administration refused to defend protections for people with pre-existing conditions, one of the most popular provisions of the Affordable Care Act.

Senator Bob Casey, Democrat of Pennsylvania, said, “I don’t know of any American who wants to go back to those days when you could be denied coverage or treatment because of pre-existing conditions.”

Republicans repeatedly tried and failed to repeal or roll back the health law last year.

The term “pre-existing conditions” refers not just to serious illnesses like cancer. Before the Affordable Care Act, some insurers denied coverage or charged higher premiums to people with high blood pressure, seasonal allergies, diabetes, arthritis and migraine headaches, among other conditions. The Kaiser Family Foundation has estimated that at least one-fourth of Americans below the age of 65 have conditions that could have made them uninsurable under medical underwriting practices used before the Affordable Care Act.

Meanwhile, Roll Call reports that Democrats are hoping that the Administration’s legal position will help them in November:

Democrats have seized on the Justice Department’s announcement that it will not defend the 2010 health care law’s protections for people with pre-existing conditions, sensing an opening for the midterms.

House Democratic leaders have scheduled a Wednesday afternoon press conference to push against the determination announced by Attorney General Jeff Sessions, and that opposition looks to be a key pillar of the strategy of Senate Democrats and their supporters going into the fall.

American Bridge, for instance, on Tuesday announced new digital ads on the issue for Missouri, Ohio, Tennessee and West Virginia.

Of those, the ads in Missouri and West Virginia might be the most interesting. In both states, GOP challengers to Democratic incumbents are sitting state attorneys general who back the lawsuit against the health care law led by the state of Texas that prompted the DOJ to say it would not defend key parts of the law.

Missouri Democratic Sen. Claire McCaskill, among the top GOP targets this cycle, pointed out on Twitter the involvement of state Attorney General Josh Hawley in that litigation.

“No Tyler, he won’t. He is one of the AGs bringing the lawsuit to end the protection of those with pre-existing conditions,” she said in response to a tweet asking if Hawley would be joining in a counter-effort led by Xavier Becerra, the Democratic attorney general of California.

In a statement, Hawley criticized McCaskill for supporting the health care law, as well as the lack of progress on changes to it. But the Missouri attorney general also said he supports the legal requirements.

“Insurance companies should be required to cover folks with preexisting conditions, and also to allow kids to stay on their parents’ insurance up to age 26,” Hawley said. “And insurance companies should be forced to do a lot more — like actually compete for families’ business, instead of getting these sweetheart deals from big government.”

The campaign of West Virginia Democratic Sen. Joe Manchin III is highlighting his opponent’s support for the Texas lawsuit in fundraising emails. “Patrick Morrissey wants to take away affordable and accessible health care for tens of thousands of hardworking West Virginians. Morrissey is asking a federal court to strip care protections for people with pre-existing conditions,” a blast sent Monday reads.

The early evidence may be anecdotal, but the issue seems to be resonating even for Democratic incumbents from states that backed President Donald Trump.

Social media posts from Sen. Heidi Heitkamp opposing the Sessions announcement had a higher-than-normal organic reach, according to the North Dakota Democrat’s office.

“Imagine it was your child with cancer, and now the federal government is telling you that health insurance companies can essentially bankrupt your family in exchange for your child getting the lifesaving health care they need to live,” she said in a statement after the announcement.

It isn’t surprising that Democrats would jump on this issue as a potential campaign issue for the fall, and it’s one that has a good chance of making a difference in both the races where Republicans are vulnerable and in those where Democrats are considered vulnerable. For example, polling has been showing for some time now that public opinion on the PPACA as a whole has been positive for some time now and that support for repeal of the law has essentially disappeared. More specifically, even when the PPACA as a whole was unpopular and polling was showing that most Americans favored repealing the law, the provisions regarding protections for people with pre-existing conditions were almost universally popular, even among Republicans and conservatives who were opposed to the law and said they were in favor of repeal. With the Republican Administration now taking the legal position that this part of the PPACA should be repealed by the Courts, and Congress fresh off an effort in 2017 to repeal the PPACA as a whole, Democrats will no doubt be hammering the issue from now to November, particularly in states such as Missouri and West Virginia where the Republican challengers are part of the Texas litigation.

FILED UNDER: 2018 Election, Congress, Healthcare Policy, US Politics, , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Chris says:

    I find it curious that you reduce this to simply a potential election advantage for Democrats, and not address the moral outcomes removing bans on pre-existing conditions will lead to. People will go bankrupt, and people will die. Lots of them.

    In my own case, I suffer migraine headaches, a rather common condition. Pre ACA, I had an insurance company willing to sell me a policy, but they wanted me to sign a wavier that they wouldn’t cover anything brain related. Living in a country that’s ok with that situation is not a place I’m interested in living again.

  2. @Chris:

    Well this is primarily a political blog and I cover things with that in mind. I’ve already addressed the legal aspects of this issue, and this post is about the political implications of the position that Republican state Attorneys General and the Justice Department are taking.

    To be sure, the perspective you are talking about is important and I have no doubt that Democrats will focus on stories about people with pre-existing conditions who stand to lose coverage if the legal strategy succeeds.

  3. teve tory says:

    My friend Ed has sarcoidosis. He’s a great guy. He’s on a nearly debilitating array of medications to stay alive, and he can only afford those treatments because of the ACA’s Preexisting Conditions policies.

  4. Scott says:

    I do think healthcare will be the number one issue unless Republicans can find a distracting issue like abortion. To me, the top two healthcare issues are pre-existing conditions and the 3:1 ratio for premiums for older and younger insured people. Democrats are trying out the latter issue calling it an age tax on men and women over 50. Whether that take off remains to be seen. It is aimed at core Trump supporters.

  5. An Interested Party says:

    What more could Republicans do to paint themselves as cruel monsters? Disemboweling puppies live on prime time TV perhaps…

  6. Jen says:


    I too have migraines as a pre-existing condition. I’ve been fortunate enough to have been covered by employer-sponsored insurance (either my own, or through my spouse) for years, but early on in my career I was at a job that didn’t offer coverage and had to get an individual policy. They outright refused to cover anything relating to migraines, including any medication. (This was the early ’90s, when triptans were just beginning to emerge as treatment so they were $$$$.) In addition, my monthly payment equaled roughly half of my after-tax salary. The only reason I was able to manage this was that I was living with family at the time.

    Since then, I’ve learned that certain types of migraines (with aura) can actually get you declined outright, because research has shown that migraine with aura sufferers have a slightly higher risk of stroke.

    When I mention to people that migraines are a pre-exisiting condition for which you will either pay more or can even be denied coverage, they say no, that can’t be right.

    This is a very long way of saying that there are still some people out there who think that people denied for having a pre-existing condition are those with cancer, or diabetes, or kidney failure, etc. They don’t realize how broad these categories have become as insurance companies have invested heavily in data analysis of claims. Prior use of a CPAP machine? Denial. Benign fibroids? Denial. And on, and on…

    I hope the Republicans pay dearly for this.

  7. OzarkHillbilly says:

    @Jen: I have a # of pre-existing conditions. If I can not get coverage, I will not be able to get healthcare. I’m not going out alone.

  8. KM says:

    Where’s all the Trumpkins talking about how liberals “don’t understand” how Trump got elected? Where’s the concern for the rural, the poor, the forgotten man this will surely screw over? This is one of the few things even cons loved about the ACA and whoops, Trump wants it gone because it costs money to be decent human beings.

    Everybody has pre-existing conditions. EVERYBODY. That’s because life is a pre-existing condition and the companies can declare any ole’ thing a disqualifying event if they want. Those stupid enough to think it’s something major like cancer are going to get hosed when they realize it can be as simple as childbirth, headaches or even acne!