Congress

AG Hawley helped strike down Obamacare. Can Sen. Hawley pick up the pieces?

Josh Hawley, Republican U.S. senator-elect
Josh Hawley, Republican U.S. senator-elect NYT

Josh Hawley is in a bind as he enters the U.S. Senate and has to deal with fixing the nation’s health care system.

The Missouri Republican was one of the state attorneys general to sign on to a lawsuit that led to a federal judge’s ruling last week that Obamacare is unconstitutional.

But once he’s sworn in next month as a U.S. senator, Hawley will feel immense pressure to keep the law’s more popular provisions alive.

“Hawley’s made a mess here and it’s not one he can easily fix,” said Timothy Jost, a health care law expert and emeritus professor at Washington and Lee University School of Law.

A district court judge in Texas sided with Hawley and 19 other GOP state officials Friday in finding the Affordable Care Act, which is commonly known as Obamacare, unconstitutional after Congress knocked out the tax penalty for people who don’t comply with a mandate to buy insurance.

The law remains in effect for now in anticipation of an appeal.

But the ruling creates a major test for Hawley, who on the campaign trail repeatedly asserted his support for protections for people with pre-existing conditions.

The ACA barred insurers from denying coverage for pre-existing conditions and required most people to purchase health insurance coverage.

In the face of attacks from Democrats for his participation in the Texas-led legal case, Hawley’s campaign launched an ad that highlighted his son’s degenerative bone disease to showcase his personal reasons for wanting to preserve the pre-existing condition protection.

Hawley said Monday that such protection will be his singular focus as a senator, but dismissed the notion that the ruling created a new urgency for Congress.

“I don’t think it makes the situation any different,” said Hawley, who contended that Congress already faced pressure to pass a new health care law to alleviate costs for families after increases to premiums since Obamacare took effect eight years ago.

“It’s lovely that the Washington, D.C., chattering class has finally noticed,” Hawley said about the sense of urgency on health care after the court ruling.

Hawley has repeatedly rejected the argument that the ACA must remain intact for the pre-existing condition protection to remain.

He has also expressed support for keeping a provision that allows people to remain on their parents’ insurance plans until they are 26 and said Congress should act quickly to preserve that part of the law.

“The Democrats have said over and over that they want to cover folks with pre-existing conditions,” Hawley said when asked about the feasibility of working with House Democrats to pass a new health care law.

“We’ve got to set aside this fixation on protecting President Obama’s legacy,” said Hawley, arguing that certain protections can exist separate from the ACA.

Hawley suggested that one way to protect people with pre-existing conditions would be to pass Maine Republican Sen. Susan Collins’ reinsurance legislation, which would use federal dollars to reimburse insurers for the cost of expensive beneficiaries and help ease the burden of covering people with pre-existing conditions.

Hawley met with Collins about the proposal last month following his victory against Collins’ longtime friend Sen. Claire McCaskill, D-Missouri. He said that because of the court ruling, her bill would have to be rewritten because it was written with the assumption that the ACA would remain in effect.

But Jost said Collins’ legislation wouldn’t work without the ACA in place. The ACA is a delicately balanced law designed so that consumers share the risk burden, thus keeping premiums manageable.

“It’s like saying if somebody steals your car, I’ve got a steering wheel here,” Jost said in response to Hawley’s suggestion.

Collins said in a Sunday interview on ABC’s “This Week” that Congress should move forward with the legislation. She also predicted that the court ruling will be reversed on appeal.

Jost said that other Republican plans that have been floated as ways to protect pre-existing conditions have major loopholes and won’t be effective without the other regulations the ACA establishes.

“Any kind of feel-good ‘We like people with pre-existing conditions’ (bill) is not going to have any effect at all,” he said.

Despite months of warnings from Democrats, some Republican lawmakers were still surprised the judge found the entire law unconstitutional after Congress eliminated the tax penalty.

“I was voting to repeal the individual mandate. That’s not a surprise. Its consequences to pre-existing conditions was not contemplated,” said Sen. Jerry Moran, R-Kansas, who had been a swing vote on health care last year.

Scrapping the ACA in its entirety will have consequences beyond losing these protections. The law enabled states to expand Medicaid and took steps to lower prescription drug costs for seniors.

All of those policies will be gone if the district court ruling stands.

“It was surprising that even the initial lawsuit took such an extreme position,” said Sam Halabi, an associate professor who specializes in health care law at the University of Missouri School of Law, where Hawley previously worked.

“Even they (state attorneys general) may have lost track of all the components were in the 2010 law.”

Josh Hawley says one of Claire McCaskill's supporters crossed the line by bringing Hawley’s family into the discussion. McCaskill wants her supporters to talk about health care and pre-existing conditions.



Robert Henneke, the director and counsel of the Texas-based Center for the American Future, said Friday the ruling provides a “tremendous opportunity” for states to craft their own health care reforms.

Henneke delivered oral arguments in the case on behalf of private clients involved in the lawsuit.

No state attorney general attended the September lawsuit hearing in Fort Worth. Hawley did not attend and has offered few details on what specific work his office did in the case.

Sen. Roy Blunt, R-Missouri, advocated for cooperating with Democrats, who will control the House in January, to improve the current health care system rather than scrapping it entirely.

“We surely should be at the point now that we want to look at ways where we want to make this system work better,” Blunt said. “That includes more choices from my point of view. And it probably includes an individual marketplace.”

Andrea Drusch and Lindsay Wise of The McClatchy Washington Bureau contributed to this report.
Bryan Lowry covers Kansas and Missouri politics as Washington correspondent for The Kansas City Star. He previously served as Kansas statehouse correspondent for The Wichita Eagle and as The Star’s lead political reporter. Lowry contributed to The Star’s investigation into government secrecy that was a finalist for The Pulitzer Prize.
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