Sen. Ron Wyden, D-Oregon, and Sen. Patty Murray, D-Washington, wait for Sen. Joe Manchin, D-West Virginia, before a news conference to press Congress to intervene on behalf of the Affordable Care Act, after a federal judge in Texas ruled it unconstitutional, on Capitol Hill in Washington, Wednesday. (J. Scott Applewhite / Associated Press)

Sen. Ron Wyden, D-Oregon, and Sen. Patty Murray, D-Washington, wait for Sen. Joe Manchin, D-West Virginia, before a news conference to press Congress to intervene on behalf of the Affordable Care Act, after a federal judge in Texas ruled it unconstitutional, on Capitol Hill in Washington, Wednesday. (J. Scott Applewhite / Associated Press)

Editorial: Congress must join appeal to defend the ACA

A judge has declared Obamacare unconstitutional, threatening protections for millions of Americans.

By The Herald Editorial Board

By most accounts, the blue wave that gave Democrats a 36-seat advantage and control of the U.S. House of Representatives for the first time in eight years came largely because of the effectiveness of their message on health care, in part a promise for protection of the Affordable Care Act and its provisions.

The ACA, also known as Obamacare, since its passage in 2010 has had a long fight to find support among the public, but a tracking poll by the Kaiser Family Foundation in late November found that 53 percent had a generally favorable opinion of the ACA, while 40 percent held an unfavorable opinion. There’s even greater support for the ACA’s provisions, including 9 in 10 Americans in a KFF poll last June who considered it important that protections for those with pre-existing conditions remain law.

If Americans considered those protections to be under threat, they were right to be concerned; less than a month after the November election, a U.S. District Court judge in Texas ruled in favor of a lawsuit by a group of Republican state attorneys general and governors, that declared the entirety of the ACA as unconstitutional. Judge Reed O’Connor ruled that because Congress had earlier repealed the ACA’s tax penalty for those who declined to obtain health insurance, the entire law was thus unconstitutional.

The same judge later issued a stay while his ruling is appealed, which is likely to be heard in the end by the U.S. Supreme Court.

What’s at stake in that appeal if the ACA is ultimately struck down?

Between 17 million and 20 million Americans would lose health insurance coverage, including those who gained coverage through the expansion of Medicaid in a number of states, including Washington state.

Insurers will no longer be required to offer insurance coverage to young adults up to age 26 through their parents’ insurance.

Insurers will again be able to impose annual and lifetime limits on coverage, and caps on out-of-pocket costs will be eliminated.

And coverage for those with pre-existing conditions — any health issue for which an insurance applicant has previously sought medical care — would no longer be assured.

About 130 million Americans younger than 65 — about 51 percent of that population — are believed to live with pre-existing conditions. In Washington state, about 3 million — 41 percent of those under 65 — have pre-existing conditions, as do some 385,000 of children under 18 in the state.

Loss of the ACA would mean those with pre-existing conditions would likely face more costly insurance coverage, assuming they could obtain coverage.

Seeking to assist in the appeal to protect the ACA, Washington Sens. Patty Murray and Maria Cantwell on Wednesday joined in a Senate resolution that seeks to authorize the Senate’s legal counsel to assist in the appeal and defend the ACA and its protections.

The resolution notes that ordinarily the federal Department of Justice defends laws when challenged in court, even when an administration disagrees with the law. The Trump administration did the opposite, bucking precedent and arguing against the ACA’s constitutionality in the Texas case.

“This is about patients and families, and right now, for what feels like the millionth time, people are worried,” Murray said in a news release. “If Republicans truly meant what they said during the campaign season about how they care about protections for pre-existing conditions and helping families afford coverage, now is the time to show it by joining Democrats in taking action to stand up for the health care protections people across this country rely on.”

Earlier this month, the House voted on a similar resolution, authorizing the House’s general counsel to join in the appeal. The measure passed with the approval of all 235 Democrats, joined by three Republicans.

Prior to the vote, one Republican, Washington’s 5th District Rep. Cathy McMorris Rodgers held out hope the ACA would ultimately be found unconstitutional, telling Axios, “it means that we could rebuild and make sure that we have a health care system that is going to ensure that individuals are in charge of their health care.”

But in the eight years that Republicans controlled both House and Senate, and the last two where they held sway in House, Senate and the Oval Office, they could find no way to “rebuild” an acceptable replacement for Obamacare, and instead looked only for opportunities to chip away at the health care law and try and force its collapse.

Progressives among the resurgent Democrats have held up Medicare for all as the ultimate replacement for the ACA. That debate is fine to have, but it will require a more involved and lengthy sales job before an American public that took the better part of a decade to warm to Obamacare.

If tens of millions are to keep the coverage they have now, and more than 130 million with pre-existing conditions are to keep theirs, the ACA must be successfully defended in the courts, and Congress must continue to look for ways to keep costs down for everyone.

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