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Back to the bad old days of no coverage for pre-existing conditions? Thanks to a lawsuit in Texas, it could happen: Melinda Welsh (Opinion)

October 10, 2018

Back to the bad old days of no coverage for pre-existing conditions? Thanks to a lawsuit in Texas, it could happen: Melinda Welsh (Opinion)

DAVIS, California -- Like many Americans, I was stunned in June when the Trump administration decided to agree with elimination of the pre-existing conditions provision of the Affordable Care Act. What? I thought we’d won that argument last year by convincing Congress that Republican and Democrat constituents alike wouldn’t tolerate elimination of health care protections for the sick and elderly.

But it’s true. As directed by Attorney General Jeff Sessions, President Donald Trump and the Department of Justice are attempting to use the courts to abolish a protection they were unable to get rid of in full view of the American people.

On June 7, Justice Department lawyers filed a brief supporting the legal challenge filed in February by 20 conservative-led states, not including Ohio, seeking to have the courts declare as invalid several health care safeguards in the Affordable Care Act. That includes the one that ensures equal access to coverage for people who need it most. The lawsuit is currently being heard in federal court in Texas, but no matter what happens there, the case is expected to head to higher courts and set off a long legal fight.

Here’s why I care so much about this issue -- I’ve got cancer. Like 16 million other people in America right now, accelerated cell division in parts of my body is trying to take me down. I’ve been one of the lucky ones who have responded to immunotherapy and remain alive today despite several doctors’ predictions years ago to the contrary. The fact makes me inexpressibly grateful for every day, but it also makes me a card-carrying member of the Pre-existing Conditions Club. So I feel the hypocrisy of this new DOJ assault deep in my bones.

President Trump declared undying loyalty to America’s sick last year when he said he’d never endanger those with pre-existing conditions. He famously promised to Bloomberg News that the GOP health overhaul proposal would “be every bit as good on pre-existing conditions as Obamacare.”

But actions speak louder. In joining the lawsuit, Trump and the DOJ have flat-out instructed the courts to dismantle pre-existing-conditions protections. Their argument goes like this: When Congress repealed the penalty for the ACA’s “individual mandate” as part of the tax overhaul, the mandate itself could no longer be considered a tax. But the Supreme Court upheld the mandate in 2012 because it was considered a tax. That means, the DOJ brief says, that per prior congressional findings the “guaranteed-issue” and “community rating” protections for those with pre-existing conditions “are inseverable” from the individual mandate -- and must also be struck down. 

The first of the DOJ lawyers signing the brief was Acting Assistant Attorney General Chad A. Readler, whom Trump has nominated for a vacancy on Ohio’s 6th U.S. Circuit Court of Appeals. Readler’s confirmation hearing before the Senate Judiciary Committee is scheduled for today.

Do we really want to go back to the bad old days when insurers could deny coverage to sick people or, at best, charge them skyrocketing rates?

It’s not a small population we’re talking about. An estimated 52 million Americans under the age of 65 have pre-existing conditions, according to a Kaiser Family Foundation analysis.

Who among us doesn’t have a friend or family member dealing with high blood pressure, diabetes, lung conditions, high cholesterol, heart disease, mental illness or cancer?

Remember the fear that used to accompany a job switch because of those medical history questionnaires insurers used to require before granting coverage? That could come roaring back. As late night host Jimmy Kimmel reminded us last year, insurers even used to routinely deny future coverage to babies, like his newborn son who had the misfortune of being born with a heart condition.

It’s revealing that the Justice Department didn’t give Republicans on Capitol Hill advance notice that they were preparing to attack the popular health care provision. That’s probably because that move would have been greeted as insane by many members of Congress.

We’re heading into a crucial fall election after all, and poll after poll show that protections for Americans with pre-existing conditions has wide-scale bipartisan support.

The pre-existing-conditions end run by the Trump team is ill-intentioned on its face - the DOJ would be wise to immediately withdraw its support for this wrongful lawsuit. Otherwise, get ready for a reckoning come November. This issue resonates in both blue and red neighborhoods. There are 52 million of us out there who belong to the Pre-existing Conditions Club. We have families and friends. We care. And we vote.

Melinda Welsh has outlived a terminal prognosis (pre-existing condition) by almost three years thanks to immunotherapy and other scientific breakthroughs in the treatment of cancer.

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