Policy Archive

Lawsuit Challenges ACA Preexisting Conditions Protections

September 18, 2018 - Earlier this month a Texas Federal District Court heard arguments in the case Texas v. United States. The Justice Department is weighing in on a lawsuit which could eliminate the Affordable Care Act's (ACA) protections for people with preexisting conditions. The lawsuit focuses on the Supreme Court's 2012 decision that upheld the ACA's requirement that Americans carry health insurance or pay a tax penalty. Noting that the tax overhaul passed in December 2017 eliminated the tax penalty, the litigation argues that the entire ACA health care law is unconstitutional.

The lawsuit was filed by Texas Attorney General Ken Paxton, on behalf of 20 states. The Justice Department's brief states that the mandate to buy insurance is unconstitutional now. It goes on to contend that because the individual mandate no longer exists, the court should strike down the ACA's protections for people with preexisting conditions, including the requirement that insurers accept all applicants ("guaranteed issue") and that they charge people with preexisting conditions no more than healthy people ("community rating").

Federal law has long provided these protections for most Americans with work-sponsored group health benefits; the ACA extended these rights to people purchasing insurance independently. If the Justice Department's argument prevails, health insurers could once again deny coverage or raise rates based on health status for people who receive their insurance through the individual market.

Preexisting Conditions
A diagnosis of a medical condition such as cancer, colitis, diabetes, asthma, sleep apnea, hypertension, or mental disorders such as anxiety and depression are examples of conditions that may no longer be protected if the ACA protections for people with preexisting conditions are overturned. 

Predisposition to a Disease / Cancer
Carrying a genetic predisposition to cancer (i.e. BRCA, PALB2, ATM, Lynch Syndrome, etc.) CANNOT be considered a preexisting condition. The Genetic Information Nondiscrimination Act (GINA) prohibits health insurance companies and employers from discriminating against people based on a genetic or inherited predisposition to disease. In other words, it is illegal for a health insurer to use a person's inherited susceptibility to disease to determine insurance eligibility, premium or contribution amounts.*  It is important to note that GINA is completely independent of the ACA; its protections will remain intact if the preexisting condition protections or other components of the health care law are eliminated.

Over the past year, the ACA has been weakened by the elimination of the individual mandate and legalization of long-term junk insurance policies. Removing the preexisting condition protections could further destabilize the insurance market.

For the many people who have previously been diagnosed with cancer, the ACA has been vital in providing access to affordable health care. FORCE will continue to advocate on behalf of our community by opposing the elimination of the ACA's preexisting condition protections.  It will take some time for this case to make its way through the courts, but 2019 insurance premiums will likely be impacted by the uncertainty and instability. Younger, healthier people stand to benefit while premiums for everyone else are likely to increase significantly.

We ask you to join us in urging our elected officials to improve the ACA in ways that benefit all Americans. Ultimately, if the ACA is repealed, millions of people could lose access to health insurance. 

*GINA only applies to health insurance and employment. Life, long-term care, and disability insurers are exempt from the law.