(Bloomberg) — Even after the Trump administration chose not to defend Obamacare’s protections for people with pre-existing medical conditions in court, Republican leaders are hoping the lawsuit doesn’t undo one of the most popular parts of the law.
Just five months before a midterm election that will decide which party controls the Senate and House, the Justice Department handed Democrats a political cudgel by putting one of the Affordable Care Act’s key provisions in legal jeopardy. Health care ranks as one of voters’ top issues.
“Everybody I know in the Senate, everybody is in favor of maintaining coverage for pre-existing conditions,” Senate Majority Leader Mitch McConnell, a Republican from Kentucky, said Tuesday. “There is no difference of opinion about that whatsoever.”
Republicans did support bills last year prior to the bipartisan agreement that would have eroded Obamacare’s protections, particularly by giving states more flexibility to waive them. GOP leaders weren’t able to muster enough votes to pass such measures to repeal and replace the health law.
The state of Texas has sued the federal government, claiming Obamacare is unconstitutional based on Congress repealing the mandate that everyone carry insurance, which will take effect next year. The Justice Department determined last week that it agrees with Texas and said it won’t defend the health law in court.
“I think the chance of that argument’s succeeding are as close to zero as anything I know of,” Senator Lamar Alexander, a Tennessee Republican, said Tuesday. “That’s as far-fetched a legal argument as I think I’ve ever heard.”
Health and Human Services Secretary Alex Azar said earlier Tuesday during a Senate hearing that the Justice Department’s stance is a “constitutional and legal position, not a policy position.”
Still, the distinction is political. Republicans were quick to blame Democrats for failing to vote for an Obamacare stabilization package earlier this year that started off as bipartisan but ended up including restrictions on abortion coverage that scuttled the deal.
“Make no mistake about it, whatever mess occurs could have been avoided by the bipartisan agreement we had reached,” McConnell said.
Senate Minority Leader Chuck Schumer of New York gave a taste of how Democrats will frame the issue during the campaign.
“If Republicans are serious about maintaining protections for people with pre-existing conditions, they should join us in urging the Trump administration to reverse their shameful decision to not defend the constitutionality of that vital provision that is already the law,” Schumer said Tuesday in a statement. “Republicans should instead work with Democrats now and throughout the summer to focus on lowering costs for the American people.”
Alexander, meanwhile, doesn’t think the Texas argument will hold up.
“I don’t think it threatens pre-existing conditions at all, and those who have it need not worry,” Alexander said.
But on the off chance the lawsuit against Obamacare prevails, would the Republicans who control Congress act?
“That’s too hypothetical,” Alexander said.