Kansas Attorney General Derek Schmidt acknowledges that a multi-state attack on the Affordable Care Act, or Obamacare, could wipe out some popular consumer protections.
But, Schmidt said, he believes Congress will step in to preserve certain parts of the law if he and 19 other Republican attorneys general succeed in striking down the individual mandate — that everybody buy coverage or face a fine on their tax return — as unconstitutional.
“The most popular policy in the world cannot stand if the Constitution doesn’t permit it,” Schmidt said in an interview. “I am convinced that the Constitution does not permit the mandate absent the tax component.”
That is the crux of the case. The states are arguing that the mandate requiring Americans — with few exceptions — to purchase health coverage became unconstitutional when Congress repealed the tax penalties needed to enforce it.
Still, Schmidt said, the potential consequences of the lawsuit, which is now pending in a federal court in Texas, “give me pause.”
“Congress is going to have to revisit the ACA one way or the other,” he said.
Polls indicate that Americans are particularly concerned about the part of the law that says insurance companies cannot return to their pre-Obamacare practice of refusing to issue policies to people with pre-existing health conditions. They also want to keep provisions to prohibit insurers from charging sick people more for coverage.
“I have a strong suspicion that in the event we prevail, pre-existing conditions, in particular, will be revisited quickly,” Schmidt said. “There is a bipartisan group of mostly Republicans in Congress that just recently introduced legislation to do that.”
U.S. Rep. Kevin Yoder is among the co-sponsors of a resolution introduced last week that calls on Congress to “support protections” for those with pre-existing conditions.
“Throughout our ongoing health care debates, I have made a promise: I will protect those with pre-existing conditions and ensure they are not denied the affordable coverage and care they need to survive,” Yoder said in a statement, which also noted his sponsorship of H.R. 1121, the Pre-Existing Conditions Protection Act.
Introduced more year-and-a-half ago that bill has not yet been scheduled for a hearing.
Still, Yoder, a four-term incumbent locked in what appears to be a competitive race against Democratic challenger Sharice Davids, could be vulnerable on the issue because of his vote last spring to repeal Obamacare.
The Democratic Congressional Campaign Committee called Yoder’s sponsorship of the non-binding resolution an “empty gesture.”
“It’s no coincidence that 54 days out from election day, vulnerable Rep. Kevin Yoder is doing damage control to hide his unpopular record of voting to gut protections for individuals with pre-existing conditions and raise health care costs on Kansas families,” the DCCC said in a statement.
The issue is also making waves in the U.S. Senate race in Missouri between incumbent Democrat Claire McCaskill and Republican challenger Josh Hawley, the state’s attorney general.
Hawley, according to the Kansas City Star, is saying that he too wants to maintain pre-existing condition protections. But, McCaskill said, that is the opposite of what that he and other attorneys general are pushing for in the lawsuit. It argues that striking down the individual mandate should invalidate the entire law.
Jim McLean is managing director of the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach him on Twitter @jmcleanks.
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