Texas Attorney General Ken Paxton is about to find out if the Affordable Care Act covers cutting off your nose to spite your face. Last month, as filings in the Paxton-led lawsuit against President Barack Obama's signature achievement piled up in federal court, the Texas attorney general slipped a new argument into the case file.
That Paxton, who is under felony indictment for alleged securities fraud, filed his new brief on July 5 without an announcement or press release was no accident. (His office is a press-release factory.) In it, he attacked one of the most popular portions of the ACA and he did so on behalf, if that's remotely the right word, of the people he represents in Texas. The attorney general, as he made clear in the court filing, wants a federal judge to end the act's protections for Texans with pre-existing conditions, regardless of whether the court rules against Obamacare as a whole.
The reasoning behind Paxton's argument is easy to follow. The attorney general, along with officials from 19 other states, sued to end Obamacare in February. The plaintiffs focused their arguments on Congress' decision to end the individual mandate — the provision of the act that required those without heath insurance to pay a tax penalty. Without the mandate, Paxton argued, the act as a whole was unconstitutional.
In June, the U.S. Department of Justice announced that it wouldn't defend what remains of the law in court, leaving Paxton and his 19 fellow travelers fighting against a competing coalition of 16 states looking to preserve Obamacare, rather than the feds. That's why Paxton made his latest argument. He wants a judge to let insurers in Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Wisconsin and West Virginia out of Obamacare's requirement that they cover those with pre-existing conditions, even if the judge allows the plaintiffs to stick to the law in their states.
Paxton's office was circumspect when asked about why he believes Texans with pre-existing conditions should lose the protections they've had under the act.
"Texas' lawsuit takes issue with Washington's unconstitutional control of the American health care system," said Marc Rylander, Paxton's director of communications. "Texans should be free again to make their own health care choices, including which doctor they want to see."
Presumably, Texans can see whichever doctor they want now, if they can afford to pay the bill.
If insurers in Texas are no longer required to allow those with pre-existing conditions to buy policies for the same price as those without, the consequences will be stark. According to the Kaiser Family Foundation, 27 percent of non-elderly Texas adults — those between 18 and 64 — have a pre-existing condition that would've resulted in their being denied coverage prior to the ACA. That's more than 4.5 million Texans.
"The worst consequences will be felt by those who don't get job-based insurance. There's this group of people that don't get job-based insurance; they don't qualify for Medicare or Medicaid. In Texas, that's about 1.6 million people who are buying what I call individual market insurance. This was the market before the ACA. You could get turned down. You could get charged more," said Stacey Pogue, the senior policy analyst for the Center for Public Policy Priorities Health and Wellness team.
Even those who work jobs that provide or subsidize insurance coverage are vulnerable, should they get fired, laid off or just decide to take a different path.
"The people who are buying in that market, who don't have job-based insurance, certainly stand to lose the most," Pogue said, "but I think it's important to note that, even for people who have job-based insurance, that coverage isn't a constant. A lot of the 1.6 million people in the individual market aren't in there all the time. They're in there for six months or a year when they're going back to college, between jobs or just turned 26 and aged off their parents insurance."
Making sure that those with pre-existing conditions can get insurance coverage is overwhelmingly popular. According to a June 2018 poll from, again, the Kaiser Family Foundation, 91 percent of Americans believe that it is at least "somewhat important" that provisions protecting those with pre-existing conditions remain law. Raise the bar to "very important" and 76 percent of those taking the poll agree.
So what's Paxton doing?
"While beating up on Obamacare makes some sense when you're trying to beat back any potential Republican primary challenger," Rice University political science professor Mark Jones said, "it's a horrible issue for the general election. It really is one that Paxton would be better off letting die on the vine or at least keeping out of the public's view."
Initially, Paxton avoided significant media coverage of his brief singling out Texas, perhaps because it was filed during what was essentially a long holiday weekend, or perhaps because the filing just got buried in all the other paperwork that's been generated by his lawsuit. Now that it's out in the open that the attorney general wants to take insurance away from Texans with pre-existing conditions, even if those with similar conditions in other states are allowed to keep their insurance, it's up to Justin Nelson, Paxton's Democratic opponent, to turn up the pressure, Jones said.
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"Without question, it's a political gift for Nelson because it puts Paxton on the wrong side of public opinion by a long shot. The only real question is whether Justin Nelson has enough money to take advantage of it and make sure that Texas voters, by November, know that Ken Paxton wants to end coverage for pre-existing conditions," Jones said. "Opposing Obamacare makes good sense. On average, the Texas public has a negative opinion regarding Obamacare, but when you get to specifics like ending the prohibition on denying coverage to those with pre-existing conditions, that's where you lose a majority of the Texas public, including many regular Republican votes."
Paxton has asked that the judge in the ACA lawsuit issue an injunction in the case allowing insurers in Texas and the 19 other plaintiff states to stop following the law's provisions by Jan. 1. The injunction could be short-lived, however, if Paxton loses his re-election bid against Nelson in November.
"As attorney general, I will withdraw Texas from these wasteful lawsuits that hurt the people of Texas," Nelson told the Observer Wednesday. "The top lawyer for Texas should protect all Texans, not attempt to strip away access to health care."