the national interest

RBG Is Gone, and Trump’s Attack on Preexisting Conditions Is Alive

Photo: Tom Williams/CQ-Roll Call, Inc via Getty Imag

One of President Trump’s most brazen lies has been his constant claim that he will protect insurance coverage for Americans who have preexisting health conditions. The lie has succeeded through a combination of sheer blunt repetition and the lack of a newsworthy context to expose it. There is rarely going to be a context in which “Fact Check: Trump Lying About Preexisting Conditions” captures headlines like any newer and fresher Trumpian outrage. But one by-product of Ruth Bader Ginsburg’s death is that this may no longer be true.

Protections for patients with preexisting conditions was a key achievement of the Affordable Care Act. Before Obamacare, a patient with high medical costs would be protected if they enrolled either in public insurance (Medicare or Medicaid) or got it through their employer, all of which spread costs between the healthy and the sick. The individual insurance market — the only option for working-age Americans who couldn’t get coverage through their job — was broken. Screening out customers who were likely to have expensive medical costs was the entire economic basis for the individual insurance market.

Obamacare fixed that, by preventing insurers from denying coverage or charging higher rates to patients with preexisting conditions. To make the system work, it constructed elaborate mechanisms to even out the costs, so that firms wouldn’t be punished for signing up sick customers.

Republicans have spent the last decade mounting a full-scale political and legal attack against those protections. Republicans have tried to keep healthy customers from signing up — the Trump administration cut out funding to inform customers of the enrollment date — in order to drive healthy people out of the risk pool and make costs prohibitive for the sick. It tried, and failed, to repeal protections for patients with preexisting conditions in 2017. Trump’s efforts to repeal Obamacare was deeply unpopular and led to the worst period of polling he has had during his administration. After that legislative failure, the administration still didn’t give up. It began permitting insurers to sell unregulated plans to healthy customers, in an attempt to splinter the risk-sharing between healthy and sick created by Obamacare.

And the party has pursued a series of outlandish lawsuits to nullify those protections. It lost its first lawsuit heard by the Supreme Court eight years ago. Now the Trump administration is joining yet another suit that would repeal Obamacare and allow insurance companies to charge exorbitant rates to customers with preexisting conditions.

Why has the party pursued this goal so fervently? One reason is simple anti-government ideology. Obamacare imposed heavy-handed regulation on a free market, and conservatives sincerely believe that the correct system is one in which individuals are free to make transactions on whatever terms they see fit. If an insurance company wants to sell cheap insurance with skimpy coverage to a healthy single 24 year old, and the 24 year old wants to buy it, the government shouldn’t stand in the way. If allowing these kinds of plans leaves more expensive customers unable to afford their own insurance, that’s a problem they’re willing to shunt to the side and deal with later (which, in practice, means not at all).

The other reason for the crusade is fanatical hatred of Obama. Trump’s obsession with wiping out the achievements of his predecessor has been picked apart by numerous armchair therapists. But it is merely a more intense version of a goal that has consumed the entire party for a decade. Republicans did not previously believe that allowing insurers to cherry-pick the healthy customers out of the individual market was the centerpiece of their health-insurance strategy. They only came to embrace this perverse practice after Obama banned it.

It is difficult to convey to outsiders the sheer intensity of the conservative movement’s obsession with eliminating Obamacare. It became an Ahabian quest wildly out of proportion to any cost-benefit analysis, and which could only be explained as a response to a kind of psychic wound that was opened when an adversary they insisted would fail created a popular and successful legacy program. It was an article of faith throughout the Republican Party that Obamacare would be a “train wreck.” Allowing it to succeed is an intolerable humiliation.

As time has gone on, the political costs of the party’s stance have grown higher. The law’s individual components have always been popular, and its insurance regulations have always been its most popular feature. The public opposes Trump’s goal of letting insurers charge higher rates to sicker customers by overwhelming margins. Even Republican voters oppose Trump’s lawsuit. This is why Trump has insisted over and over that he will protect preexisting conditions, and has even claimed that Biden would repeal them.

He has made this claim even as he is currently in court seeking to destroy those protections. The Trump lawsuit has attracted little attention until now, because its legal argument is so far-fetched that even numerous conservative legal scholars dismiss the case as “absurd,” embarrassingly bad,” and so on. Given that John Roberts had already rejected a less-absurd lawsuit to repeal Obamacare in 2012, nobody took seriously the idea that coming back to him with a crazier legal theory eight years later would work.

But Ginsburg’s death changes the calculation. Now the court is split 4-4, and the pivotal vote sits to the right of Roberts. Because the lawsuit was supported by a radical right-wing federal judge, the court would need to overturn it by a 5-3 vote. In a post-Ginsburg world, there is no such thing as a right-wing legal theory so absurd that its chances of success can be dismissed out of hand. Now there is real legal drama.

Biden is taking the opportunity to highlight the tenuousness of the insurance regulations. His campaign “will shift to a dominant emphasis on health care, turning the looming Supreme Court fight into a referendum on coverage and pre-existing conditions,” reports Axios.

Trump’s best strategy for covering his health-care liability was to flood the zone with bullshit, simply repeating the phrase “preexisting conditions” every day and assuming more undecided voters would hear him say those words than see a fact-check pointing out his actual stance. Now that Trump stands a real chance of destroying Obamacare’s patient protections, news coverage, and hopefully the presidential debates, will focus some attention on it. The worst possible thing has happened to Trump’s Obamacare repeal crusade: It became viable again.

RBG’s Gone, Trump’s Attack on Preexisting Conditions Alive