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 SchumerSchumer says he had 'serious talk' with Feinstein, declines to comment on Judiciary role Democrats seem unlikely to move against Feinstein Trump to lift Sudan terror sponsor designation MORE (D-N.Y.), who wanted to put Republicans in a tough spot three weeks ahead of the election. 


Republican Sens. Cory GardnerCory Scott GardnerCunningham, Tillis locked in tight race in North Carolina: poll Push to expand Supreme Court faces Democratic buzzsaw Democratic super PAC pulls remaining ads from Colorado Senate race MORE (Colo.), Joni ErnstJoni Kay ErnstPush to expand Supreme Court faces Democratic buzzsaw Supreme Court battle turns into 2020 proxy war Trump hits road in scramble to shore up support from 2016 MORE (Iowa), Martha McSallyMartha Elizabeth McSallyCunningham, Tillis locked in tight race in North Carolina: poll Senate Republicans offer constitutional amendment to block Supreme Court packing Biden and Schumer face battles with left if Democrats win big MORE (Ariz.) and Dan SullivanDaniel Scott SullivanCoordinated federal leadership is needed for recovery of US travel and tourism The Hill's Campaign Report: Democrats break fundraising records in Senate races The Hill's Campaign Report: Trump, Biden hit campaign trail in Florida 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 CollinsSenate to vote Monday to confirm Amy Coney Barrett to Supreme Court Cunningham, Tillis locked in tight race in North Carolina: poll 51 percent want Barrett seated on Supreme Court: poll MORE (R-Maine), who is also facing a tough reelection bid, and Sen. Lisa MurkowskiLisa Ann MurkowskiSenate to vote Monday to confirm Amy Coney Barrett to Supreme Court Senate GOP eyes Oct. 26 for confirming Barrett to Supreme Court This week: Clock ticks on chance for coronavirus deal 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 DainesClimate change — Trump's golden opportunity Steve Bullock raises .8 million in third quarter for Montana Senate bid Overnight Defense: National Guard says no federal requests for election security help | Dems accuse VA head of misusing resources | Army official links COVID-19 to troop suicides MORE (Mont.), Thom TillisThomas (Thom) Roland TillisCunningham, Tillis locked in tight race in North Carolina: poll Senate Republicans offer constitutional amendment to block Supreme Court packing Push to expand Supreme Court faces Democratic buzzsaw MORE (N.C.) and Kelly LoefflerKelly LoefflerDemocrats make gains in Georgia Senate races: poll Senate Republicans offer constitutional amendment to block Supreme Court packing Perdue's rival raises nearly M after senator mispronounces Kamala Harris's name MORE (Ga.). Sen. Lindsey GrahamLindsey Olin GrahamDemocratic Senate campaign arm outraises GOP counterpart in September Hug or heresy? The left's attack on Dianne Feinstein is a sad sign of our times Democrats seem unlikely to move against Feinstein 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 MurrayOvernight Health Care: Trump takes criticism of Fauci to a new level | GOP Health Committee chairman defends Fauci | Birx confronted Pence about Atlas Government watchdog to investigate allegations of Trump interference at CDC, FDA Baldwin calls for Senate hearing on CDC response to meatpacking plant coronavirus outbreak 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 BecerraCalifornia Republicans agree not to use unofficial ballot drop boxes Schwarzenegger: California GOP has gone 'off the rails' with unofficial ballot boxes California GOP won't comply with order on unofficial ballot drop boxes 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 McConnellOn The Money: McConnell says he would give Trump-backed coronavirus deal a Senate vote | Pelosi, Mnuchin see progress, but no breakthrough | Trump, House lawyers return to court in fight over financial records Progress, but no breakthrough, on coronavirus relief LGBTQ voters must show up at the polls, or risk losing progress 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 HickenlooperBiden and Schumer face battles with left if Democrats win big Push to expand Supreme Court faces Democratic buzzsaw Democratic super PAC pulls remaining ads from Colorado Senate race 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.”