In a pandemic, efforts to kill the Affordable Care Act might be getting dicier

The Trump administration last month joined 18 states in asking the U.S. Supreme Court to invalidate the Affordable Care Act, arguing, “the entire ACA must fall.”

The move comes as more than a million Ohioans are estimated to have lost health coverage because of coronavirus-related job losses. It also comes as the disease is expected to leave an unknown number of people with preexisting health conditions that insurers could refuse to cover if the high court rules for the president and the states fighting to overturn the law.

Democrats in 2018 rode the issue of health care — particularly the ACA’s protections for people with preexisting conditions — to a big win in the U.S. House of Representatives. And that was before the world found itself in the grip of a novel disease and all the health and economic uncertainty it’s causing.

“It is hard to imagine a worse time for state leaders to actively work to reduce access to health care — during a pandemic,” Wendy Patton, senior project director at Policy Matters Ohio, a think tank, said in a statement.

The state’s top Republicans are pretty muted on whether they want to see the health law, also known as “Obamacare,” fall. 

Ohio Attorney General Dave Yost, a Republican, joined his counterpart in Montana last year in a friend-of-the-court brief arguing that a lower court was too sweeping when it struck down the law.

The ACA rhetoric of Mike DeWine, Ohio’s Republican governor, has changed over the years.

“On the ACA, we have not offered new comments recently on this issue. The ACA is current law,” Dan Tierney, Gov. Mike DeWine’s press secretary, said Monday in an email. “The Governor has stated that if the ACA were to cease being law by court order, he would seek legislation to address the situation for state-regulated policies.”

DeWine hasn’t always been as circumspect about the law. In 2010, when he was running for Ohio attorney general, he wrote an op-ed  in The Columbus Dispatch slamming Democratic Attorney General Richard Cordray for not joining an earlier lawsuit against Obamacare. DeWine was arguing against the ACA’s original mandate that people get insured or face a tax penalty — a provision that was eliminated in 2017 in the Republican-passed tax bill.

“Never has the federal government forced citizens to purchase a product or service just for being a citizen of the United States,” DeWine wrote in the 2010 op-ed.

But now, if the ACA goes away, a huge chunk of Ohio might find itself without health insurance.

The Kaiser Family Foundation in May estimated that of the 1 million Ohioans who are losing health coverage due to pandemic-related job losses, just under 800,000 would be eligible for subsidies from the ACA. 

Of those, 531,000 would be eligible for Medicaid because they would be making 138% or less of federal poverty guidelines. Another 267,000 would be eligible for subsidies on the program’s insurance exchanges because they would be making 400% or less of the poverty guidelines, the foundation reported.

Despite the large numbers affected, a spokeswoman for Republican U.S. Sen. Rob Portman didn’t respond last week and this week to a request for comment.

In May, she said, “Rob has always believed that the ACA has constitutional challenges, however he isn’t going to comment on pending court cases. He has consistently said that Congress should be more proactive in addressing the high cost of healthcare as opposed to letting the courts make these decisions.”  

Before their failed effort in 2017 to repeal the ACA, congressional Republicans had already voted at least 70 times to get rid of the health law. One reason often cited for the failure: Despite frequent promises to replace the law with something better, Republicans have struggled to find a clear alternative that the public will accept.

Democratic U.S. Sen. Sherrod Brown last month said now is not the time to gut the ACA.

“There is absolutely no excuse for President Trump — in the middle of a pandemic — to actively work to kick Americans off of their health insurance and invalidate pre-existing conditions protections,” Brown said in a statement. “The President’s actions are nothing short of morally bankrupt.” 

The Supreme Court is expected to hear the case in October and rule early next year.