The midterm fight over pre-existing conditions will be in the spotlight Wednesday when a federal court hears arguments in a lawsuit against ObamaCare.
Twenty Republican-led states are supporting the lawsuit, which calls for all of ObamaCare to be overturned as unconstitutional. The Trump administration is supporting the states in court, arguing specifically that the sections of the law protecting people with pre-existing conditions from being denied coverage or charged more should be overturned.
But Democrats have made the case an issue in the midterm elections, blasting Republicans over the lawsuit and warning that it threatens to abolish popular protections for pre-existing conditions.
A federal district judge in Texas will hear arguments in the case on Wednesday, and a ruling before November could send shockwaves through the midterms.
“There’s no good time for Republicans to be arguing to make coverage for pre-existing conditions unconstitutional, but doing so in September will guarantee that this will be fresh in voters’ minds as we enter the pivotal campaign season,” said David Bergstein, spokesman for the Democratic Senatorial Campaign Committee (DSCC).
Democrats in tough races have already made the lawsuit a major issue.
A Democratic PAC is running an ad hitting Missouri GOP Senate candidate Josh Hawley, currently the state’s attorney general, for backing the lawsuit. Hawley is in a closely watched race to unseat Sen. Claire McCaskillClaire Conner McCaskillEx-Rep. Akin dies at 74 Republicans may regret restricting reproductive rights Sunday shows preview: States deal with fallout of Ida; Texas abortion law takes effect MORE (D-Mo.).
“Attorney General Josh Hawley went to court, and it could take away my health care,” says a woman in the ad.
Democratic Sen. Joe ManchinJoe ManchinBiden: Negotiating assault weapons ban more difficult than infrastructure, reconciliation deal Biden says expanding Medicare to include hearing, dental and vision a 'reach' Biden says paid leave proposal reduced from 12 to 4 weeks MORE (W.Va.) is also using the issue in ads against his opponent, West Virginia Attorney General Patrick Morrisey (R), who supports the lawsuit.
Democrats say voters can expect to see more ads like that in the run up to November. A DSCC aide said they will be making a “major push” to highlight the lawsuit around Wednesday’s oral arguments.
Democrats also plan to link the case to Brett Kavanaugh’s nomination for the Supreme Court, arguing that he would put ObamaCare at risk if he got to rule on the Texas case.
The issue has put many Republicans in a difficult spot.
ObamaCare’s protections for people with pre-existing conditions are popular, polls show. A Kaiser Family Foundation poll in June found that 76 percent of respondents said it was “very important” to maintain the law’s protection against people with pre-existing conditions being denied coverage.
In a sign of GOP concerns about the issue, 10 Republicans senators in August introduced a bill to enshrine into law ObamaCare’s ban on people with pre-existing conditions being denied coverage or being charged more, in case their party’s lawsuit succeeds.
Asked if the bill was a sign that Democrats have an effective political argument against the lawsuit, Sen. Lamar AlexanderLamar AlexanderMcConnell gets GOP wake-up call The Hill's Morning Report - Presented by Alibaba - Democrats return to disappointment on immigration Authorities link ex-Tennessee governor to killing of Jimmy Hoffa associate MORE (R-Tenn.), one of the sponsors of the new GOP bill, told reporters, “In case it might be, we want to make one back.”
Alexander said Democrats were wrong to warn that pre-existing condition protections could go away.
“I want to make sure the American people know that the guarantee of coverage for pre-existing conditions is not going to change,” he said. “It’s the law today, it’ll be the law tomorrow, it will be the law five years from now.”
Highlighting the tricky political terrain over the Republican lawsuit, Florida Gov. Rick Scott (R), who is running for Senate in a closely watched race this year, declined to take a position on the lawsuit.
While Florida is a backer of the lawsuit, Scott told reporters in Washington on Friday that he did not make that decision.
“That’s a decision of the attorney general,” Scott said. “From my standpoint, I want to make sure that you can get health-care insurance. If you have a pre-existing condition, you still have to be able to get health care, and you ought to be able to stay on your parents’ plan.”
Pressed again for his stance on the lawsuit, Scott said, “That’s a separate ... my office is not involved in that.”
Other GOP candidates are also walking a fine line.
Several Republican Senate candidates say they do support the lawsuit, but also want to maintain protections for pre-existing conditions.
“I think we need to cover preexisting AND get rid of Obamacare,” Hawley told the St. Louis Post-Dispatch in July.
However, restoring protections for pre-existing conditions if ObamaCare were struck down would require lawmakers to come together to pass replacement legislation, something they have been unable to do.
Leslie Dach, the campaign chair of the pro-ObamaCare group Protect Our Care, dismissed the bill as part of “desperate efforts by Republicans to cover their tracks” on pre-existing conditions.