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Senate Dems seek to defend ACA, put GOP on record for pre-existing conditions

Senate Democrats are using a resolution to defend the Affordable Care Act to put their Republican colleagues on the record about where they stand in ensuring that protections remain in place for Americans with pre-existing medical conditions.

A group of Senate Democrats reintroduced a resolution seeking to have their chamber intervene in a lawsuit challenging the constitutionality of the Affordable Care Act.

The move is mostly symbolic, given that the Senate is controlled by Republicans. The House — now in Democratic control — adopted a similar measure last week.

Republicans who campaigned on protecting pre-existing conditions but do not back the Democrats' resolution to defend the ACA "are hypocritical," Senate Minority Leader Chuck Schumer, D-N.Y., said.

Senate Democrats are not going to let this issue go away, he told reporters during a Jan. 15 briefing on Capitol Hill.

"We are going to try to force Republicans to vote, even if they refuse to join us on this resolution, and they will have to go on record," Schumer said. He noted that 133 million Americans are living with pre-existing conditions.

The ACA included provisions that prohibited insurance companies from discriminating against or charging more for people with pre-existing medical conditions.

"Everyone is only one diagnosis away" from having a pre-existing condition, said Sen. Jacky Rosen, D-Nev.

House General Counsel Douglas Letter last week filed a motion to intervene in the lawsuit after Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled in December 2018 that when congressional Republicans under their 2017 tax reform package zeroed out the ACA's tax penalty for the individual mandate, that action rendered the remainder of the healthcare law unconstitutional.

A coalition of 17 Democratic state attorneys general is appealing the decision to the U.S. Court of Appeals for the 5th Circuit in New Orleans. Judge Leslie Southwick of the 5th Circuit, however, on Jan. 11 granted a request by the U.S. Department of Justice to put the case on hold in light of the ongoing government shutdown — now in its 25th day.

The lawsuit was brought by Republican attorneys general and governors in 20 U.S. states.

But the Trump administration, represented by the Justice Department, sided with the plaintiffs rather than defending the ACA. It called specifically for the court to invalidate the pre-existing conditions protections.

The Justice Department also filed its own notice of appeal last week.

During the Jan. 15 press briefing, Sen. Joe Manchin, D-W.V., noted that Republicans had tried multiple times to repeal the ACA and its pre-existing conditions protections.

But in the lead-up to the November 2018 midterm elections, Republicans running for Congress had insisted they were in favor of keeping the pre-existing conditions protections in place, contradicting what they had voted for a number of times in their repeal-and-replace efforts, Manchin said.

"If there are any Republicans who truly meant what they said during campaign season, they can show us now," Sen. Patty Murray, D-Wash., ranking member on the Senate Health, Education, Labor and Pensions Committee, told reporters.

If the O'Connor ruling is upheld, the Republicans have not put forward a plan that has been agreeable to their party to replace the ACA, Manchin noted.

A boon for the drug industry

If the Republican plaintiffs and the administration prevail in the Texas lawsuit, the biopharmaceutical industry "would be the big winner," said Sen. Ron Wyden, D-Ore., ranking member on the Senate Finance Committee.

If the ACA was invalidated, the provision that closes the coverage gap in the government's Medicare Part D prescription drug program — the doughnut hole — would be gone, meaning that about 10 million seniors and disabled Americans would have to pay more for their medicines, Wyden said.

The drug industry also would get a $25 billion "tax gift" due to the repeal of the so-called "pharma fee," the Oregon lawmaker said.

Drugmakers also would be able to charge Medicaid more for medicines, he added.

Getting rid of the ACA would be putting insurers and the drug industry in control of healthcare again, making it available only to the "healthy and the wealthy," Wyden said. "It would be turning back the clock."