Trump's executive order promising to cover preexisting conditions lacks legal basis

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An executive order signed by President Donald Trump on Friday is aimed at protecting individuals from being denied health insurance due to having a preexisting condition.

However, the order ensuring coverage for consumers who have preexisting conditions has no teeth, according to Kaiser Health News.

This is because the EO has no technical content, but is a statement calling for a plan, the report said.

Under the Trump Administration, Republicans have been trying to dismantle the ACA without success, and so far have not come up with a plan that would replace it or cover individuals who have preexisting conditions.

WHY THIS MATTERS

Trump on Saturday nominated Judge Amy Coney Barrett to fill the seat on the Supreme Court left vacant by the death of Ruth Bader Ginsburg. He wants Barrett – considered the conservative heir to the late Justice Antonin Scalia – confirmed in time for the November 3 election.

This would give Trump a 6-3 majority of Republican-appointed Justices should the results of the presidential election end up in the Supreme Court.

It would also swing the balance towards a ruling against the ACA when oral arguments are heard a week after the election. In 2012, Chief Justice Roberts, who was appointed by President George W. Bush, was the decisive majority vote in the 5-4 decision upholding the ACA. 

Should the Supreme Court invalidate the ACA, an estimated 20 million individuals would lose their health insurance coverage, including those who have preexisting conditions.

Both payers and providers have voiced support to continue ACA coverage.
 
THE LARGER TREND

Trump's order discredits the ACA ahead of the November 10 Supreme Court challenge by Texas and other Republican-led states to have President Barack Obama's signature healthcare law deemed unconstitutional because there is no longer a mandate for individuals to buy health insurance or face a tax penalty. The federal government has the authority to tax, but not to mandate health insurance coverage, the Supreme Court said in another challenge to the ACA in 2012.

Trump also said that according to the previous administration, only 2.7% of individuals with preexisting conditions actually gained access to health insurance through the ACA, "given existing laws and programs already in place to cover them," according to the EO.  

Other ACA failures he said, include premiums in the individual market that more than doubled from 2013 to 2017, a rise in deductibles, generous federal subsidies that are the only reason those struggling have been able to maintain coverage, and a limited choice of insurers and provider networks.

The ACA's Medicaid expansion and subsidies for the individual market are projected by the Congressional Budget Office to cost more than $1.8 trillion over the next decade, Trump said.

ON THE RECORD

"The ACA is neither the best nor the only way to ensure that Americans who suffer from pre-existing conditions have access to health-insurance coverage," Trump said in the executive order. "I have agreed with the states challenging the ACA, who have won in the federal district court and court of appeals, that the ACA, as amended, exceeds the power of the Congress. The ACA was flawed from its inception and should be struck down. However, access to health insurance despite underlying health conditions should be maintained, even if the Supreme Court invalidates the unconstitutional, and largely harmful, ACA."

Twitter: @SusanJMorse
Email the writer: susan.morse@himssmedia.com