A Republican-led lawsuit seeking to nullify the Affordable Care Act (ACA) will be spotlighted in court in the final months of congressional election campaigns, giving Democrats political fodder and sending GOP candidates in competitive races looking for cover.
Oral arguments seeking to block the health care law are set for Wednesday in federal court in Fort Worth, Texas, in a case that Texas and 19 other Republican-led states brought against the federal government.
The Trump administration’s Justice Department has opposed the plaintiffs on one important point: It has argued that the court should split the ACA individual coverage mandate, and the provisions banning medical underwriting, from the rest of the law, and throw out only those provisions, not the entire ACA, if it ends up agreeing with the plaintiffs.
But the department has taken the unusual step of failing to defend the entire ACA, and instead supporting the states’ bid to persuade a judge that the ACA individual mandate, and related parts of the ACA, should be tossed out.
The arguments come at a difficult time for Republicans as they try to defend their control of the House and Senate in the November elections while many Democrats make health care a central issue in their campaigns. The court case will help them to put GOP candidates in competitive races on the defensive.
Supporting the lawsuit would put GOP candidates at odds with many voters who want pre-existing conditions covered, while opposing it would alienate conservatives who want the Democratic law undone.
It may be a gift for Democrats, who enjoy an advantage on the handling of health care in surveys after repeated efforts by GOP lawmakers to repeal the 2010 law. Preserving the provision that guarantees coverage for pre-existing conditions unites Democrats across the political spectrum.
“The fact that this lawsuit is taking place in September means that the GOP’s health care agenda — the way they’re trying to increase premiums and cut coverage for preexisting conditions — will be front and center for voters minds,” said David Bergstein, a spokesman for the Democratic Senatorial Campaign Committee.
A spokeswoman for the National Republican Senatorial Committee didn’t return messages seeking comment.
To gain a House majority, Democrats need to flip 23 seats, a prospect that independent analysts say is within reach. The party will have a tougher time gaining two seats to control the Senate, where Democrats have 26 seats to defend, compared with just eight for Republicans.
The lawsuit has become an issue in the West Virginia Senate race, where incumbent Democrat Joe Manchin is in a tight race with Republican Patrick Morrisey in a state that Trump won in 2016. Manchin has aired a TV ad connecting Morrisey to the lawsuit, with testimonials from West Virginians with illnesses.
In another close Senate race in Missouri, the Democratic group Majority Forward is running a spot against Republican candidate Josh Hawley, for backing the Texas lawsuit as state attorney general. Hawley is challenging Sen. Claire McCaskill in another state carried by Trump.
In the House, Democratic candidates in competitive races are highlighting support for pre-existing condition rules, including Aftab Pureval in Ohio and Josh Harder in California. Tyler Law, a spokesman for the Democratic Congressional Campaign Committee, said the party intends to highlight the lawsuit in competitive districts.
An Aug. 23-28 survey released Wednesday by the nonpartisan Kaiser Family Foundation found that three in four Americans said it’s “very important” that Obamacare’s protections for pre-existing conditions remain law, including majorities of self-identified Democrats, Republicans and independents.