A group of states has brought a longshot lawsuit to invalidate Obamacare, and the Trump administration has largely supported their position. Democrats have seized the opportunity to charge that Republicans would eliminate legal protections for people with pre-existing conditions. President Trump’s counter has been to promise that he will make sure that they have protection even after Obamacare. A new executive order puts that promise into writing without explaining how he would keep it. What Republicans are telling voters concerned about this issue is: Trust us. The flaw in the political strategy is that they generally don’t.
A significant number of people with chronic conditions had difficulty getting affordable insurance before Obamacare. The law dealt with the problem by prohibiting insurers from discriminating on the basis of health status. If you have a chronic condition, they have to sell you the same policy at the same rate they would offer someone in perfect health. That regulation raises the cost of health insurance for healthy people and thus discourages them from buying it. (It also creates an incentive for insurers to design policies that are more attractive to healthy than to sick people.)
When they tried to legislate a replacement to Obamacare in 2017, Republicans sought to let states relax that regulation. Under their proposal, states could have required insurers to offer the same policies at the same rates to all customers, regardless of health status, so long as they had previously maintained coverage. That way, people would have had an incentive to purchase insurance while healthy, bringing premiums down. States would have been allowed to make this change only if they had shown that they had credible plans to take care of those who fell through the cracks.
This would not have been a return to the pre-Obamacare situation. People would have had much greater ability to maintain continuous coverage than they did back then, thanks both to new forms of federal assistance (tax credits created under Obamacare and largely maintained under Republican replacements) and to the requirement that insurers offer affordable coverage to those who already had it. High-risk pools to assist the uninsured, which had been inadequate to handle the problem before Obamacare, would have much more easily helped a smaller population in need. But Republicans in Congress, largely unfamiliar with the ins and outs of health policy, did not make the case for their approach.
Republicans now have three basic choices in answering the question of how they would help people with pre-existing conditions if they replaced Obamacare or courts invalidated it. The first would be to promise that they would re-enact Obamacare’s stringent regulation and provide subsidies for those who need it to afford the high premiums it necessitates — essentially re-creating a lot of Obamacare. The second would be to promise to enact continuous-coverage protections of the type they proposed in 2017. And the third would be to do nothing, telling people with pre-existing conditions that they are on their own (even though the paucity of cheap, renewable catastrophic policies is largely the result of government policies).
Our preference would be the second option. The Trump administration, unable to decide among these options, is instead, effectively, promising to choose among them at some future date when the courts have struck down Obamacare or Republicans have unified control in Washington. That refusal to choose lets the Democrats hang the third position around Republican necks while also doing nothing to dislodge Obamacare. It also lets Democrats say that Republicans are dodging the question instead of leveling with the voters. Which is, unfortunately, true.