After years of assailing Obamacare, some Republicans now fear the political fallout

Dec. 31, 2018 8:45 AM PT

Reporting from Washington — Republicans in Congress, fresh off an election that punished their party for opposing healthcare protections, now worry that a recent federal court ruling undermining Obamacare could give Democrats new ammunition for 2020, and they’re scrambling to thwart any attacks.

Particularly in the Senate, some Republicans want to prove to voters that they will protect popular benefits mandated by President Obama’s signature 2010 law, especially insurance coverage for people with preexisting medical conditions. They are eager to neutralize an issue that Democrats effectively used in the midterm election to gain a net 40 House seats and take control of the chamber.

For the record:

1:40 p.m. Dec. 30, 2018An earlier version of this article misspelled the first name of Sen. Shelley Moore Capito as Shelly.

“I think it would be in our best interest as Republicans to assure the public that [on] the issues like preexisting conditions, staying on your parents’ insurance until age 26 and things like that, we’re committed,” said Sen. Shelley Moore Capito, who is up for reelection in West Virginia in 2020.

Republican senators, including Sen. John Barrasso of Wyoming, are discussing what healthcare legislation they could introduce next year that would allow Republicans to show support for preexisting conditions protections. One possibility is legislation to address the court decision, in which federal District Court Judge Reed O’Connor of Texas ruled two weeks ago that the entire healthcare law should be struck down.

In the ruling, widely criticized by legal scholars, O’Connor said Congress’ 2017 decision to repeal the law’s mandate requiring individuals to have health insurance meant that the entire law needed to be scrapped. O’Connor on Sunday said the law can remain in place until the appeals process is completed.

While the suit before O’Connor was initiated by Republican state officials, reflecting the party’s long-standing vow to repeal Obamacare, the law’s increased popularity has some Republicans on Capitol Hill distancing themselves from the decision, which is likely to remain in the news as appeals move through the court system.

“I intended to repeal the individual mandate. I did not intend to eliminate preexisting conditions coverage,” said Sen. Jerry Moran of Kansas. “We ought to be prepared for dealing with preexisting conditions.”

From a policy standpoint, however, the two issues were linked, as the Obama administration argued before the Supreme Court. The individual mandate, originally a conservative idea, was intended to ensure that insurance companies would get more customers — and younger and healthier ones — to offset the companies’ costs of covering people with medical conditions. Severing the two posed difficulties for insurers as well as politicians writing legislation.

As Republicans maneuver for a response, Democrats will continue to stoke the issue.

Senate Democrats plan to make healthcare the focus of their January retreat, where they will set the year’s political message. House Democrats, with their new majority, are weighing whether to join appeals of the Texas lawsuit. They’re also considering legislation making minor changes to the healthcare law and undoing some Trump administration regulations, notably one allowing health plans that don’t adhere to Obamacare’s coverage requirements — “junk plans,” critics call them, because insurers can drop patients when they get sick.

Healthcare “is not going away as the No. 1 issue for the electorate and the No. 1 wedge issue between Republicans and Democrats,” said Sen. Chris Murphy of Connecticut. “Separate and aside from the policy, do Republicans really want to gift us with this issue for the next two years?”

For years after the passage of the Affordable Care Act in 2010, Republicans had the upper hand politically, using opposition to the law to retake control of the House that year. But public opinion on the law, long closely divided, turned more favorable in 2017, when President Trump and congressional Republicans tried and failed to repeal it. Democrats used that record of opposition to advantage in the midterm campaigns, arguing that Republicans were willing to let insurance companies drop people with health conditions.

Republicans counter that their so-called “repeal and replace” bills against Obamacare would have protected people with preexisting conditions in different but equally comprehensive ways. One alternative would have banned companies from charging patients more as long as they maintained insurance coverage, though health experts say it would not have been as comprehensive as Obamacare.

Even as the political dynamic has shifted around the healthcare law, the most conservative Republicans remain unbowed.

“Shame on us — we never put [Democrats] on the defensive about how they used the individual mandate to fine 8 million poor people in America by $2 billion,” said Sen. David Perdue of Georgia.

Still, Republicans say there are ways around the issue. One of the leaders among the Republican state attorneys general who brought the lawsuit against Obamacare, Josh Hawley of Missouri, managed to defeat Democratic Sen. Claire McCaskill last month. Barrasso credited Hawley with talking directly to voters about his concern for people with preexisting conditions.

Such tactics didn’t work for many Republicans, however. Reps. Dana Rohrabacher of Costa Mesa, David Young of Iowa and Dave Brat of Virginia, and Wisconsin Gov. Scott Walker, among others, cut campaign ads touting their concerns for people with preexisting medical conditions. They all lost.

For Republican survivors, attempts to draft healthcare bills that address the issues holds risks. While almost every Republican is on the record in support of guaranteeing coverage for people with medical conditions, the party is still divided on how best to do so given the complexities of healthcare policy. They remain split as well on whether to try again to repeal Obamacare.

Sens. Lamar Alexander (R-Tenn.) and Charles E. Grassley (R-Iowa), who will lead the Senate committees that oversee healthcare policy next year, have tried to reshape the debate to one about the cost of healthcare premiums, a big concern for most Americans.

Alexander said he wants to convert “all the energy we’ve had arguing about the 6% of health insurance market” — referring to the share of people in Obamacare plans — “to how do we [reduce] that $1.8 trillion number that we spend every year on healthcare costs.”

“We don’t have to do anything on preexisting conditions right now because that’s the law,” Alexander added.

In the House, the new chairman of the Energy and Commerce Committee, Rep. Frank Pallone of New Jersey, declined to say what kind of healthcare legislation Democrats would pursue. His goals, he said, will be to roll back the administration’s regulations allowing insurance plans to skirt Obamacare’s rules and to stabilize the Obamacare markets.

And taking Republicans at their word, Pallone said he sees an opportunity to work with them.

“The No. 1 thing I think we can work with them on is no discrimination based on preexisting conditions,” he said. “They’ve all articulated that they’re opposed to it, even the president.”

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