GOP will protect preexisting conditions if Obamacare struck down

Republicans will protect Americans who have preexisting conditions, even if the Supreme Court rules the Affordable Care Act unconstitutional, Sen. Ted Cruz told CNBC on Monday.

The conservative-majority high court is set to hear the latest legal challenge to the law, also known as Obamacare, on Nov. 10. The closely watched case has taken on heightened attention during the ongoing fight to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg. 

Many Democrats, including presidential nominee Joe Biden, are trying to paint President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court as damaging to the future of Obamacare. Barrett clerked for Justice Antonin Scalia, the powerhouse conservative who died in 2016. She’s likely to be one of the more conservative justices on the court, should she be confirmed.

If Barrett is on the court when the latest ACA challenge, California vs. Texas, is heard, Democrats worry the 6-3 conservative majority would increase the odds the court rule in favor of repeal.

Cruz, a Republican from Texas, said on “Squawk Box” he is not sure how the Supreme Court would rule in the upcoming case. But he said the GOP would act should the court strike down former President Barack Obama’s signature health-care law, which has a provision that prevents insurers from discriminating against people who have preexisting medical conditions.

“Every Republican agrees we’re going to protect preexisting conditions,” Cruz said, while criticizing Democrats for trying to make Barrett’s nomination into a referendum on health care. “What they’re talking about is what they think politically resonates, but 100 out of 100 senators agree we’re going to protect preexisting conditions regardless of what happens with Obamacare.” 

Last week, Trump signed an executive order that he says protects people who have preexisting medical conditions, although experts have raised questions about the enforceability of the action. In the text of Trump’s order, it contends the Affordable Care Act was “flawed from its inception and should be struck down.” 

“However, access to health insurance despite underlying health conditions should be maintained, even if the Supreme Court invalidates the unconstitutional, and largely harmful, ACA,” the order states. 

Cruz and other Republicans in Congress have spent years criticizing Obamacare, which was signed into law in March 2010. Efforts to repeal the law have thus far been unsuccessful, including a high-profile attempt in 2017 that was punctuated by late Republican Sen. John McCain’s vote against his party’s attempt to do so. 

A recent poll from The New York Times and Siena College found 57% of Americans support the Affordable Care Act while 38% oppose it. A Kaiser Family Foundation poll from earlier in September found 49% of Americans held a favorable opinion of the law, compared to 42% who held a negative opinion.

Democratic Sen. Chris Coons of Delaware said Monday the Republicans have “no replacement plan” if the Affordable Care Act is overturned. Appearing later on “Squawk Box,” Coons said it was “grossly irresponsible” to be threatening access to health-care coverage during the coronavirus pandemic.

The constitutionality of Obamacare has come before the Supreme Court before. In 2012, Chief Justice John Roberts, a conservative put on the high court by George W. Bush, sided with the liberal justices at the time, including Ginsburg, in upholding the law, 5-4. Scalia and the three other conservatives voted against it.

Cruz, who argued cases before the nation’s high court before his election to the Senate, said on Monday that Roberts’ opinion in that case was “terrible” and “one of the most political decisions he’s ever done.”

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