GOP struggles to play defense on Trump's ObamaCare lawsuit

GOP struggles to play defense on Trump's ObamaCare lawsuit
© Greg Nash

Republicans are struggling to show they support ObamaCare’s protections for people with preexisting health conditions as the Supreme Court prepares to hear arguments in a Trump-backed lawsuit that seeks to overturn the entire health care law. 

Several Senate Republicans have found themselves playing defense, and on Thursday, six of them, who previously voted to repeal ObamaCare, voted with Democrats on a procedural motion to debate a bill that would block the Department of Justice from arguing against the law in court. 

The bill was never expected to pass and was purely a political move on the part of Minority Leader Charles SchumerChuck SchumerBiden and the new Congress must protect Americans from utility shutoffs 'Almost Heaven, West Virginia' — Joe Manchin and a 50-50 Senate Democrats looking to speed through Senate impeachment trial MORE (D-N.Y.), who wanted to put Republicans in a tough spot three weeks ahead of the election. 


Republican Sens. Cory GardnerCory GardnerOvernight Defense: Joint Chiefs denounce Capitol attack | Contractors halt donations after siege | 'QAnon Shaman' at Capitol is Navy vet Lobbying world Senate swears-in six new lawmakers as 117th Congress convenes MORE (Colo.), Joni ErnstJoni Kay ErnstMcConnell about to school Trump on political power for the last time Military survivors of child sex abuse deserve more NASA selects the next Artemis moonwalkers while SpaceX flies a Starship MORE (Iowa), Martha McSallyMartha Elizabeth McSallyCindy McCain on possible GOP censure: 'I think I'm going to make T-shirts' Arizona state GOP moves to censure Cindy McCain, Jeff Flake Trump renominates Judy Shelton in last-ditch bid to reshape Fed MORE (Ariz.) and Dan SullivanDaniel Scott SullivanMcConnell about to school Trump on political power for the last time Senate poised to override Trump's defense bill veto OVERNIGHT ENERGY: Trump administration proceeds with rollback of bird protections despite objections | Trump banking proposal on fossil fuels sparks backlash from libertarians | EU 2019 greenhouse gas emissions down 24 percent MORE (Alaska), who are all in tough reelection races that could determine who controls the Senate next year, voted with Democrats, illustrating the party’s growing struggles.

Sen. Susan CollinsSusan Margaret CollinsImpeachment trial tests Trump's grip on Senate GOP 'Almost Heaven, West Virginia' — Joe Manchin and a 50-50 Senate McConnell about to school Trump on political power for the last time MORE (R-Maine), who is also facing a tough reelection bid, and Sen. Lisa MurkowskiLisa Ann MurkowskiImpeachment trial tests Trump's grip on Senate GOP 'Almost Heaven, West Virginia' — Joe Manchin and a 50-50 Senate The Hill's Morning Report - Biden asks Congress to expand largest relief response in U.S. history MORE (R-Alaska), also voted with Democrats, but both had previously stated their opposition to the lawsuit. Both also voted against the 2017 repeal bill.

Other Republican incumbents running competitive races voted "no," including Steve DainesSteven (Steve) David DainesMcConnell about to school Trump on political power for the last time McConnell says he's undecided on whether to vote to convict Trump Member of Senate GOP leadership: Impeaching Trump 'not going to happen' MORE (Mont.), Thom TillisThomas (Thom) Roland TillisMcConnell about to school Trump on political power for the last time Seven Senate races to watch in 2022 Top GOP senators acknowledge Biden as president-elect after Electoral College vote MORE (N.C.) and Kelly LoefflerKelly LoefflerNikki Haley unveils PAC ahead of possible 2024 White House bid McConnell has said he thinks Trump committed impeachable offenses: report Top Republican congressional aide resigns, rips GOP lawmakers who objected to Biden win MORE (Ga.). Sen. Lindsey GrahamLindsey Olin GrahamImpeachment trial tests Trump's grip on Senate GOP An attack on America that's divided Congress — and a nation The Hill's Morning Report - Biden asks Congress to expand largest relief response in U.S. history MORE (R-S.C.) did not vote. 

Democrats feel they took the House majority in 2018 by running against the GOP’s attacks on ObamaCare, and they are hoping to replicate the feat in the Senate this November.

Democrats need to have a net gain of three seats and win the White House to take back the majority.

They feel several political winds are blowing their way with the lawsuit’s oral arguments just weeks away, a third Trump nominee to the Supreme Court likely to be confirmed by the Republican-controlled Senate, and the ongoing COVID-19 pandemic underscoring concerns about health insurance.


“The stakes could not be higher,” Sen. Patty MurrayPatricia (Patty) Lynn MurrayHawley pens op-ed to defend decision to object to electoral votes amid pushback Demolition at the Labor Department, too Hawley, Cruz face rising anger, possible censure MORE (D-Wash.), a member of the minority’s leadership, told reporters in a call Thursday. 

“We are in the middle of a historic pandemic that has killed over 200,000 in our country. Millions of people have lost their jobs and their health care coverage. If Republicans have their way, over 20 million more could lose their health care,” she said, referring to the lawsuit, which was filed by 18 Republican state attorneys general, and backed by Trump’s Department of Justice (DOJ).

The Supreme Court is slated to hear the case Nov. 10, with the GOP attorneys general arguing the law cannot stand and must be overturned after Congressional Republicans, through the 2017 tax reform bill, repealed the individual mandate — the requirement that people who don’t have insurance pay a fine. 

The DOJ sided with the GOP attorneys general, taking the unusual step of refusing to defend longstanding federal law. Democratic attorneys general — led by California’s Xavier BecerraXavier BecerraOVERNIGHT ENERGY: Groups sue EPA over 'backwards' lead rule | 12 states, green groups sue EPA over airline standards they deem insufficient | Biden taps Janet McCabe to serve as deputy at EPA 12 states, green groups sue EPA over airline standards they deem insufficient Democratic senator: COVID-19 relief is priority over impeachment trial MORE — are defending the law in court.

The battle has repeatedly put vulnerable Senate and House Republicans on the back foot as they struggle to explain to voters what would happen to protections for people with preexisting conditions if the law was struck down. 

While House and Senate Republicans have put forward bills they say would preserve those protections if ObamaCare were struck down by the courts, experts have long countered that those alternatives would make coverage too expensive and inadequate for anyone who has ever been sick or might become sick in the future. 

“These bills would put back pieces of what is in the ACA, but not nearly enough to make insurance affordable for people with preexisting conditions or really to ensure affordability for anybody,” said Karen Pollitz, a senior fellow at the Kaiser Family Foundation who studies health reform and private insurance.  

Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBoebert communications director resigns amid Capitol riot: report Urgency mounts for new voting rights bill Senate Democrats leery of nixing filibuster MORE (R-Ky.) tried to get ahead of Thursday’s vote by calling a vote on a bill sponsored by Tillis called the “Protect Act” that purports to restore ObamaCare’s protections for preexisting conditions if the Supreme Court strikes down the law. 

Several Republicans in tight races issued statements proclaiming their support for the bill. 

“Unfortunately, Senate Democrats have continuously chosen to put politics before the American people and make protecting pre-existing conditions a campaign wedge-issue even though it has broad bipartisan support,” Tillis said on his Facebook page after Wednesday’s vote.

Tillis’s bill would bar insurers from doing several things, including charging people with preexisting conditions more money, refusing to sell them policies and denying claims related to those illnesses.

But it would not restore other parts of ObamaCare that prohibit insurers from charging people more based on their gender, age or occupation. Tillis’s bill also says nothing about ObamaCare’s ban on annual and lifetime dollar limits on care. Before the ACA was passed, insurers routinely capped how much they would spend on a beneficiaries' care in a given year or the lifetime of the policy.


Tillis’s bill also does not restore ObamaCare’s essential health benefits, which requires insurers to cover things like maternity coverage, mental health care and substance abuse treatment, or its subsidies, which help low-income Americans pay for insurance. It also doesn't replace ObamaCare's Medicaid expansion, which extended coverage to millions of low-income adults.

“If the ACA goes away, and any of these bills becomes the replacement, older, sicker people, women of childbearing age, people with disabilities, will all be worse off,” said Sabrina Corlette, founder and co-director of the Center on Health Insurance Reforms at Georgetown University. 

“The bottom line is none of these bills replace the ACA, nor would they stem the increase in the number of people who would be uninsured should the ACA be struck down. No one should mistake these bills for any comprehensive plan,” Corlette said.

Another bill, sponsored by Gardner, called the “Pre-Existing Conditions Protect Act” would actually let insurance companies refuse to sell coverage to people with preexisting conditions, experts say. If an insurer did decide to sell a policy to someone with preexisting conditions, under Gardner’s bill it could not refuse to not cover services related to that condition or charge them more based on their health status. 

Gardner told The Hill in a statement he voted with Democrats on Thursday because “it would have provided an opportunity to vote on my bill to protect coverage with pre-existing conditions.” 

“I support having this important dialogue with my colleagues,” he said. His office did not reply to a follow-up question about whether he supports the GOP’s lawsuit. 


After introducing his bill earlier this year, Gardner touted that bill in an ad, alongside his mother, a cancer survivor. He said it would guarantee protections for preexisting conditions “no matter what happens to ObamaCare.” 

He is facing a formidable challenge from former Gov. John HickenlooperJohn HickenlooperSenate swears-in six new lawmakers as 117th Congress convenes Democrats frustrated, GOP jubilant in Senate fight Chamber-endorsed Dems struggle on election night MORE (D), who has largely focused his campaign on Gardner’s opposition to ObamaCare. 

“Cory Gardner has voted over a dozen times to repeal, defund or weaken the ACA,” Hickenlooper tweeted Wednesday. “Cory Gardner can lie all he wants on TV — but the truth is, he will not protect your health care.”