The Trump Administration’s Newest About-Face: Seeking to Dismantle Protections for Those with Pre-Existing Conditions

Diana Polson |

In a move in line with Trump’s typical bait-and-switch—purporting to be a defender of the American working class but then doing everything he can to shift power and wealth upwards—he and his Justice Department have decided not to defend the Affordable Care Act’s (ACA) protection for those with pre-existing conditions. The pre-existing conditions provision is arguably the most popular piece of the ACA which ensures that insurance companies cannot deny, limit or overcharge anyone who has a pre-existing condition.

A new legal challenge to the Affordable Care Act (ACA), Texas et al. v. United States et al., argues that the ACA’s protections for those with pre-existing conditions is unconstitutional because the original legislation was supposed to work in tandem with the individual mandate. Since the individual mandate has been repealed, the pre-existing condition clause should also be invalid (so the argument goes).

In an unusual move, the U.S. Justice Department will not defend the existing law and President Trump recently signaled his support for the plaintiffs—the 20 conservative states who filed the lawsuit. Pennsylvania was not one of the plaintiffs, nor was it one of 17 states who filed a motion opposing the case. A career DOJ attorney has recently resigned over this move.

Experts have warned that repealing the pre-existing conditions clause would not only impact those who get coverage under the Affordable Care Act, but could also impact employer coverage as well, specifically when individuals are changing jobs or when they work for smaller employers.

The Center for American Progress did an analysis of how many individuals in each state and congressional district could be affected by such a policy. In Pennsylvania, there are more than 5.3 million people (non-elderly) who have a pre-existing condition. That is 52% of all non-elderly Pennsylvanians. This includes over 1 million young people (642,700 ages 0-17 and 446,200 ages 18-24). Below, we show the data by Congressional district.

It looks like this legal challenge is unlikely to be successful, as the Supreme Court has already rejected two other challenges to the law. Many legal scholars have said the plaintiffs’ argument is without merit and that if Congress wanted to do away with the pre-existing condition provision they would have done so when repealing the individual mandate.

Even so, it is unprecedented that the Justice Department would refuse to defend existing laws, even if the current president doesn’t support said law. The Washington Post documented the numerous times that while campaigning and as president, Trump said he supported and would defend the ACA’s pre-existing condition clause. Now, and with no warning, he’s not only changed his position, but is refusing to enforce existing law which is one of his duties as president. While this about-face is certainly not surprising, it is disturbing nonetheless.