PHOENIX — Two Republican legislators and the attorney general are taking steps to propose legislation ensuring that Arizonans with preexisting conditions can still buy health insurance if federal courts strike down the Affordable Care Act.
The move comes even as Republican attorneys general — including Arizona’s Mark Brnovich — are working to have the Affordable Care Act declared unconstitutional, including the provisions about coverage access. They contend Congress lacks the power to mandate that people buy health insurance.
Last December a federal judge in Texas agreed. That sent the case to the 5th U.S. Circuit Court of Appeals, which could rule any day.
But the final word is likely to belong to the U.S. Supreme Court. Depending on how quickly it schedules arguments, a ruling could come as early as next spring.
The law, approved by what was at the time a Democrat-controlled Congress, has never been popular among many Republicans.
But Sen. J.D. Mesnard, R-Chandler, said that if the Affordable Care Act disappears, so does the provision requiring insurers to provide coverage for those with preexisting conditions. And he acknowledged that particular part of the law remains popular with consumers.
“I think there’s growing appreciation that we want to make sure that those with preexisting conditions aren’t now somehow unable to get coverage,” he said.
How that would work and who would pay for it, however, remains to be decided.
“There are obviously going to have to be conversations with a wide assortment of folks, including insurance companies that will obviously be impacted by this,” Mesnard said.
Costs, he said, are likely to be passed on to all people with health insurance, no matter where and how it is purchased.
“I suspect there’ll be a domino effect for all of us to be impacted by this potentially in our premiums,” Mesnard said. “But at the end of the day I think that most people acknowledge that the preexisting conditions issue has always been a challenge, and one that we have to overcome.”
The wide-ranging 2010 law required employers to provide health insurance for their workers and individuals to obtain their own coverage. It also created insurance exchanges to provide discounted coverage for those who meet income guidelines; expanded Medicaid coverage; and eliminated lifetime monetary caps on insurance coverage.
The Supreme Court upheld the law in 2012, with the majority saying the mandate for individuals to purchase insurance fits within the power of Congress to impose a tax.
But all that fell apart in 2017 when Congress eliminated the financial penalty for failing to have insurance, a move that the current round of challengers say eliminated any legal basis for the law.
It is that, Mesnard said, that creates the need for a contingency plan if the Supreme Court finds the current version of the law unconstitutional.
“We don’t want to be caught unprepared,” he said. Mesnard said he believes Arizonans should not have to go back to the days before the Affordable Care Act when they could find themselves unable to purchase insurance.
While there can be debate over other provisions of the law, Mesnard said, this issue is “one that most people on both sides of the aisle have rallied behind as an issue we have to tackle.”
None of this would be necessary if there were no lawsuit, one in which Brnovich has joined. But the attorney general’s aide Ryan Anderson defended the decision to join the litigation to challenge the law.
“There is a question here as to whether or not the act, as it stands today, is unconstitutional,” he said. Anderson said that is separate from the policy questions of whether there should be mandated coverage for preexisting conditions and whether more needs to be done to ensure that Americans have better access to health care.
“Those are all very relevant discussions and appropriate discussions,” but they are irrelevant to the underlying legal question, Anderson said.
“The fact of the matter is, if you believe something is unconstitutional, the ends shouldn’t justify the means,” he said.
Brnovich “personally believes that preexisting conditions should be covered by insurance companies,” Anderson said. “But that doesn’t mean the American people should be forced to accept a broader unconstitutional mandate in order to keep the act’s most popular provision.”
Brnovich is working with Mesnard and Rep. Jeff Weninger, R-Chandler, to address what will happen to Arizonans if the entire law is struck down.
“What we’re proposing here is to do a narrow-focused introduction with coverage for preexisting conditions,” Anderson said.
A court ruling voiding the Affordable Care Act would have effects beyond the issue of preexisting conditions that this proposal hopes to resolve.
Arizona was one of the states that took advantage of the provision providing federal dollars to expand health coverage to anyone earning up to 138 percent of the federal poverty level, about $29,400 for a family of three. Prior to that, Arizona law, as approved by voters, included coverage only up to the poverty level.
That added about 400,000 people to the rolls of the Arizona Health Care Cost Containment System, the state’s Medicaid program, bringing the current total to close to 1.9 million. If the Affordable Care Act goes away, so does the federal cash that pays almost the entire cost of the expansion.
Mesnard said it is possible the Supreme Court could leave the Medicaid expansion piece in place even if the rest of the law is voided.
And if not, “I’m prepared to consider all options,” he said.
Mesnard said his views won’t be colored by the fact that he voted in 2013 against the proposal by then-Gov. Jan Brewer to expand Medicaid.
“Opposing a new thing is one thing,” he said. “And sort of rolling back something that’s already in place is another.”