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By Hannah Archambault September 13, 2018
Theo DeRosa
By Theo DeRosa September 13, 2018
By Matthew Hall September 13, 2018

McCaskill's right: Hawley's lawsuit would end Affordable Care Act protections

A major talking point in Missouri Sen. Claire McCaskill's re-election campaign has been a pending lawsuit by her opponent, state Attorney General Josh Hawley, to repeal parts of former President Barack Obama's health care law — the Patient Protection and Affordable Care Act.

"Josh Hawley decided to use your taxpayer dollars to file a lawsuit that would take away important prescription drug coverage for seniors through Medicare and end all of the consumer protections under the ACA," she wrote in an op-edfor the Springfield News-Leader on Aug. 23.

We're wary of words so absolute as "all." We wanted to know whether McCaskill was overstating the effects of Hawley's lawsuit.

Hawley's lawsuit

A 2012 lawsuit to repeal the health care act failed at the Supreme Court because the law had a tax included in its pre-existing conditions mandate as a penalty for not maintaining health coverage. The Supreme Court found that Congress had the power to tax given to them under the Constitution.

With the Tax Cuts and Jobs Act, passed in 2017, Congress left the mandate in place but reduced the tax to zero. The lawsuit Hawley signed on to, alongside 17 other Republican attorneys general and two GOP governors, argues that "once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall," and asks a judge to order an injunction on all Affordable Care Act activity, essentially repealing the entire thing.

The results depend on whether the states in the lawsuit can prove that the mandate is unconstitutional and that the rest of the health care law is so tied up with the mandate that it should go, too. If the lawsuit can prove either or both, insurance companies can go back to pre-Affordable Care Act standards of determining health coverage with pre-existing conditions.

Pre-existing conditions

"Sen. McCaskill is correct," said Nicholas Bagley, law professor at the University of Michigan Law School. "The states that brought the Texas lawsuit have asked the court to invalidate the entire Affordable Care Act — lock, stock and barrel."

No consumer protections in the individual health market stipulated under the act would remain because the whole law would be gone.

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However, consumer protections listed under Medicare and Medicaid would still exist as they are social insurance programs, which means federal or state governments are required by law to guarantee health care to those who fit certain requirements such as old age, unemployment or disabilities. As consumers, those who qualify can't be denied service or have their eligibility or benefits restricted unless Congress were to pass new legislation redefining what is considered a medical necessity.

Drug coverage for the elderly

Before the health care act, many Medicare recipients dealt with a "doughnut hole" in their drug coverage. This meant that once a person's spending reached a certain amount, a coverage gap began where they were responsible for 100 percent of the cost for future drugs. The act shrunk that percentage.

For example, in 2018, if someone spent over $3,750 on prescription drugs, he or she would then pay up to 35 percent for covered prescriptions. Starting in 2019, Medicare enrollees will pay just 25 percent of the cost for name-brand prescriptions after reaching the coverage gap.

The senior prescription drug coverage would not be completely repealed with the health care act, as it was the result of former President George W. Bush's Medicare Modernization Act in 2003. Only the monetary limit some Medicare recipients experience could widen.

Our ruling

McCaskill said that Josh Hawley's lawsuit "would take away important prescription drug coverage for seniors through Medicare and end all of the consumer protections under the ACA."

McCaskill's claims about the lawsuit have a ring of truth — Hawley's lawsuit would repeal the entire health care act and hence all of its consumer protections, including those for the doughnut hole.

The Republican Congress has not passed any substitute health care plan to replace the act, so it is unclear if Hawley and his fellow Republican attorneys general would have a new system in place with consumer protections like those under the Affordable Care Act.

We rate McCaskill's claims True.

Our Sources, Texas, Wisconsin et al v. U.S. et al — ACA Complaint, Feb. 26, 2018., Costs in the Coverage Gap

Medicare Payment Advisory Commission, Medicare Beneficiary Demographics, June 2017.

The Journal of the American Medical Association, JAMA Forum: Looming Legal and Political Fights over Preexisting Condition Protections, June 25, 2018., Healthcare Law Protections, AG Hawley Joins Coalition to Fight Unconstitutional Obamacare, Feb. 26, 2018., AG Hawley and 20-State Coalition File Injunction Against Obamacare, April 27, 2018.

PolitiFact, Did Patrick Morrisey join a lawsuit to allow insurers to deny coverage for pre-existing conditions?, June 26, 2018.

Kaiser Family Foundation, Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA, Dec. 12, 2016.

AARP, Medicare ‘Doughnut Hole’ Will Close in 2019, Feb. 9, 2018.

Email interview with Larry Levitt, senior vice president for health reform and senior advisor to the president in the Kaiser Family Foundation, Sept. 4, 2018.

Email interview with Alliance of Community Health Plans expert, Sept. 4, 2018.

Email interview with Ilya Somin, professor of law at George Mason University, Sept. 4, 2018.

Email interview with Nicholas Bagley, professor of law at the University of Michigan Law School, Sept. 4, 2018.

Email interview with Eric Mee, press secretary, McCaskill for Missouri, Aug. 31, 2018.

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McCaskill's right: Hawley's lawsuit would end Affordable Care Act protections

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