Forget Trump. The 2018 Midterm Election Is a Fight About Obamacare's Pre-Existing Conditions Rules

Turns out voters like the Democratic health law...when it's run by Republicans.


Ralf Hirschberger/dpa/picture-alliance/Newscom

On the surface, the run-up to the 2018 midterms looks a lot like a circus, with Donald Trump as the ringmaster.

From the furors over Michael Avenatti and Stormy Daniels, to bizarre controversies over dehumanizing internet memes, to silly debates about Elizabeth Warren's DNA, to the tiffs between Melania Trump and rapper T.I. or Ben Sasse and Sean Hannity, to the latest round of foreign policy horrors, to most every word uttered or tweeted by Trump himself, the news, for those who keep up, often resembles a particularly anarchic variety show, in which every performer looks determined to make a fool of himself. Viewed this way, politics in 2018 resembles most everything else in 2018: weird, bad, and Extremely Online.

But outside of Twitter and cable news chyrons, the midterm itself looks a lot more conventional, a contest about classic kitchen table issues, especially health care, and protections for pre-existing conditions in particular. And in this fight, you can see the shape of health policy debates for years to come.

Although Democrats have been running health care-focused ads all year, the pre-existing conditions argument came to the fore with the nomination of Brett Kavanaugh to the Supreme Court. Prior to the sexual assault allegations against him, one of the most frequent attacks against Kavanaugh was that he would provide a fifth vote to overturn Obamacare's pre-existing conditions rules, should a lawsuit by conservative state attorneys general reach the High Court.

This was an implausible argument for a variety of reasons—the case is weak, Kavanaugh authored an opinion that offered a legal rationale for upholding the regulations, and even if he did vote against the health law, there would probably still be five votes to keep it in place. But it offered an early preview of the Democrats' midterm election strategy, which is focused on making the case that Republicans wouldn't maintain legal protections for people who are or have been sick.

You can see that argument play out, among other places, in Arizona, where Republican Senate candidate Martha McSally has fended off attacks from her Democratic opponent, Kyrsten Sinema, that she doesn't support protections for people with pre-existing conditions. "That's a lie," she told a questioner at a campaign event recently. Instead, McSally has argued that she favors keeping those rules in place.

"I voted to protect people with pre-existing conditions," McSally said during a debate this week. "We cannot go back to where we were before Obamacare, where people were one diagnosis away from going bankrupt, because they could not get access to health care." Republicans in a number of races have begun to run ads insisting that they favor pre-existing conditions rules; in Texas, GOP Sen. Ted Cruz closed out a debate with Beto O'Rourke by saying that he wants to preserve those rules.

Liberal pundits have argued that Republicans health care promises are misleading, if not outright lies. I wouldn't go quite that far, but it's fair to say that much of what Republicans have said about pre-existing conditions this year is designed to obscure rather than illuminate.

McSally did, for example, vote to preserve some of Obamacare's pre-existing conditions rules, but only as part of a bill that would have repealed and rewritten the health law (hence the argument that the replacement plan was Obamacare-lite), provided less funding for coverage, and allowed insurers to charge sick people more than under existing law. Other Republicans have pointed to their support for legislation that would have required insurers to cover people with pre-existing conditions—but would allow insurers to decline to cover care related to the conditions themselves.

One can perhaps justify these positions on the merits, as attempts to strike a balance between protections for the sick and the actuarial realities of offering similarly priced coverage to everyone, regardless of health status. And it would certainly be possible to make an explicit case that the health law's pre-existing conditions rules are among the primary drivers of health insurance costs.

But that is not, for the most part, what Republicans are doing. Instead, they are pretending to support Obamacare's regulations as they exist under Obamacare. They are saying that Obamacare got it right.

You can understand why Republicans might choose to obfuscate.
Voters trust Democrats more on health care, Obamacare has become more popular since Republicans tried and failed to repeal it last year, and the pre-existing conditions regulations almost always poll well. The presence of Obamacare has altered the politics around pre-existing conditions rules.

But even here the story is more complex: Yes, surveys that ask about standalone support for pre-existing conditions show that they are popular, but polls that ask respondents to consider the costs of those rules show the opposite. Yes, Obamacare has become more popular under Trump (moreso than the GOP tax law), but the rise in popularity has occurred as Republicans have made a series of changes to the program that Democrats charged amounted to a policy of coordinated sabotage—cutting promotional funding, allowing for cheaper insurance subject to fewer regulations, ending a line of insurance subsidies a court had ruled illegal, and zeroing out the individual mandate penalty.

Yet the charge of "sabotage" has become harder to sustain as the results of GOP changes have become clear. Under Trump, enrollment in Obamacare's insurance exchanges has fallen only slightly, the overall uninsured rate has stayed basically the same, and after years of steady hikes, health care premiums have leveled off or even fallen in some states, while insurers who fled the exchanges are returning. Yes, it's early, and all of this could change. But what this offers right now is a potential explanation for why the health law's popularity has increased.

What the polling suggests, then, is that the public prefers the version of Obamacare we have now, with stable rates and insurer participation, along with access to a wider variety of plans. The popular version of Obamacare is the one remodeled, but not repealed, by Republicans.

But that, of course, is an argument that neither party is willing to make, at least at the moment. So instead we are witnessing a strange sort of argument, in which Democrats pretend that Republicans have undermined Obamacare, even as the results suggest that little if any serious damage has been done so far, while Republicans pretend they support the law's pre-existing conditions regulations as they exist today, even as the policies they favor would change them.

The odd shape of this debate is a result of both Obamacare's flaws, which were visible throughout the Obama administration, as well as its relative stability, in which it has stubbornly refused to collapse under its own weight. It is also a product of the natural dynamic between the two parties when it comes to health policy, in which activist Democrats press for greater government involvement, while Republicans, despite some reformist gestures, back roughly the status quo. And it points toward the equilibrium that is likely to come, in which Republicans end up defending something like Obamacare, while Democrats end up pressing for something like single-payer.

This would be a notable shift from the health policy arguments that have defined the last decade, but it would also mark yet another way in which, even amidst the freakshow weirdness of the Trump era, American politics has retained a core of conventionality: For anyone who prefers an alternative that would reduce and restructure government involvement in health care, it leaves much to be desired.