It’s no secret Attorney General Ken Paxton opposes the federal health care law.
But his animus toward the Patient Protection and Affordable Care Act, also known as Obamacare, runs so deep that he is now leading a stampede of Republican state attorneys general over a cliff to attack the most vital pieces of the law — recklessly disregarding the health consequences for Texans and the political ramifications for his party.
If Paxton’s latest salvo succeeds, millions of Texans with pre-existing conditions could lose their health care or find the premiums significantly more expensive, perhaps unaffordably so.
More than a million Texans would lose the federal subsidies that help them afford insurance coverage. Texas, which sadly leads the nation in percentage of uninsured residents, would surely grow those ranks.
And the remaining lucky ones with insurance would face even higher premiums as the pool of people paying into the system continues to shrink.
How is this fighting for Texans?
As Congress tried last year to overhaul Obamacare, we heard from many Central Texas readers who called the health care law a lifeline. The law enabled many with pre-existing conditions to buy affordable health insurance for the first time in decades. Relatives of people who died after a costly illness said the insurance saved the family from financial ruin.
Even so, we recognize the Affordable Care Act has not been a panacea for the country’s health care problems. Premiums keep rising, particularly for individual policies purchased in the marketplace, and dwindling competition in many counties leaves consumers with poor options.
We urged Congress last year to repair the law.
Instead, here comes Paxton with a gasoline can and a match.
Paxton’s lawsuit, joined by 19 other states and pending before a federal court in Fort Worth, argues that when Congress last year eliminated the tax penalty for those who don’t buy health insurance, the rest of the landmark health care law became invalid and unenforceable.
Despite his laments in other arenas against “activist judges” overstepping their role, Paxton now dares the courts to do what Congress would not: Repeal Obamacare.
This cynical approach is legally hollow: If Congress intended to eliminate all the protections of the health care law, including the coverage for pre-existing conditions or the continuation of federal subsidies, it would have voted to do so.
U.S. District Judge Reed O’Connor, who heard arguments Sept. 5 in his Fort Worth courtroom, has not yet issued a ruling. Regardless, the case is destined for appeals that will ultimately reach the U.S. Supreme Court.
The courts shouldn’t be swayed by public opinion, but Paxton and his colleagues should take note. Nearly two-thirds of Americans polled in July said the courts shouldn’t overturn the protection for people with pre-existing conditions, and half said the courts should keep Obamacare overall, according to the Kaiser Health Tracking Poll.
That same poll found coverage for pre-existing conditions is the top health care campaign issue for voters, with three-quarters of Democratic voters and 49 percent of Republican voters saying the issue is very important or most important to them.
Not surprisingly, Paxton’s opponent this fall for attorney general, Democrat Justin Nelson, has made this issue one of the cornerstones of his campaign. U.S. Rep. Beto O’Rourke likewise champions “universal, guaranteed, high-quality health care for all” as part of his campaign to unseat U.S. Sen. Ted Cruz, a longtime Obamacare critic who says Paxton’s lawsuit would be “a win for health care consumers across the country.”
GOP leaders working to take away the protection for pre-existing conditions risk alienating their base and losing voters as a whole.
Still, the real damage would be done to everyday Texans.
More than 4.5 million Texans, or roughly one in four under the age of 65, have the kind of pre-existing conditions that individual market insurers refused to cover before the Affordable Care Act required them to do so, according to the Kaiser Family Foundation. That includes people with diabetes, arthritis, epilepsy, bipolar disorder, a new pregnancy or a cancer treatment within the past decade. Many are still able to get insurance through their employer or other government programs despite those conditions, but without the protection for pre-existing conditions, those seeking policies in the individual market would be out of luck.
The Trump administration’s brief to the court supported striking down the protection for pre-existing conditions, while keeping some parts of the law intact. But if Paxton’s lawsuit succeeds, it would unravel other provisions for everyone, including the full coverage of preventive services with no out-of-pocket costs to patients, the ability for families to keep young adults under age 26 on their plans, and other measures that lowered prescription drug costs for Medicare recipients.
Years of Republican cries to “repeal and replace” Obamacare have given way to an awkward silence from the GOP over how to actually improve health care costs and access. Last year, with control of both houses of Congress and the White House, the best Republicans could offer were bills to cut Medicaid spending, increase premiums for many and add more than 20 million Americans to the ranks of the uninsured by 2026. No wonder they couldn’t scrape together the votes to replacethe Affordable Care Act.
There are good ideas a solution-minded Congress could explore to rein in costs, such as allowing Medicare to negotiate for better prescription drug prices and use competitive bidding for medical equipment, for instance. Enticing more young, healthy people to buy insurance would also help bring down costs overall.
But the work of fixing health care needs to be done by lawmakers who have the power to build improvements — not by courts that can only strike things down.