Sens. Shaheen, Hassan to A.G. William Barr: Stop Efforts to Gut Affordable Care Act in Court

WASHINGTON, Oct. 24 -- Sen. Jeanne Shaheen, D-New Hampshire, issued the following news release:

U.S. Senators Jeanne Shaheen (D-NH) and Maggie Hassan (D-NH), along with 18 Senators, sent a letter to Attorney General William Barr, urging the Department of Justice (DOJ) to rescind its support of the Supreme Court lawsuit that seeks to invalidate the Affordable Care Act (ACA). In the letter, the Senators highlight how health insurance protections for millions of Americans are at stake in light of the current Supreme Court nomination fight and the ways in which health insurers could discriminate against millions more people who contract COVID-19 if the pre-existing protections in the ACA are gutted.

"We urge the Department of Justice to immediately rescind its support of the lawsuit in California v. Texas asking the Supreme Court to declare the ACA unconstitutional and invalidate the law in its entirety," wrote the Senators. "Passed in 2010, the ACA dramatically expanded the number of Americans with health insurance. Destroying this progress and ripping away critical protections is cruel on its face. Looking to do so in the midst of a nearly unprecedented public health emergency--a COVID-19 pandemic that has claimed over 220,000 American lives and infected over 8 million people--is especially unconscionable."

The Supreme Court will hear arguments in California v. Texas on November 10, 2020. Among critical provisions, the ACA has made it illegal for insurance companies to deny insurance coverage for the 133 million Americans with pre-existing conditions. Before the ACA became law, insurers could exclude coverage of care associated with pre-existing conditions; charge higher health premiums based on a person's health status or gender; limit certain benefits like mental health treatment, prescription drugs, or maternity care associated with pre-existing conditions; and impose lifetime or annual caps on benefits. Health experts warn that, without the ACA, health insurers could classify COVID-19 as a pre-existing condition and deny COVID-19 survivors health insurance - adding millions more people to the previously existing 133 million Americans with pre-existing conditions.

Despite the essential protections for Americans under the ACA and the growing number of Americans contracting COVID-19, the Department of Justice is currently in court seeking to invalidate the ACA while President Trump is working to fill the late Justice Ruth Bader Ginsburg's Supreme Court seat with his nominee, Judge Amy Coney Barrett, in time for the November 10 arguments. Barrett's nomination is a key component of the president's self-stated goal of "terminating" the ACA. Senator Shaheen previously led all 47 Senate Democrats on a Senate resolution that would call on the DOJ to reverse its decision to argue in favor of U.S. District Court Judge Reed O'Connor's ruling that would strike down the health care law.

The letter, which was led by Senator Elizabeth Warren (D-MA), was also signed by Ed Markey (D-MA), Mazie K. Hirono (D-HI), Kirsten Gillibrand (D-NY), Tammy Baldwin (D-WI), Chris Van Hollen (D-MD), Gary Peters (D-MI), Richard Blumenthal (D-CT), Jeff Merkley (D-OR), Tammy Duckworth (D-IL), Cory Booker (D-NJ), Tina Smith (D-MN), Patrick Leahy (D-VT), Kamala Harris (D-CA), Jack Reed (D-RI), Dick Durbin (D-IL), Dianne Feinstein (D-CA) and Chris Murphy (D-CT).

Earlier this week, Shaheen and a group of Senators wrote to the Department of Health and Human Services (HHS) and Department of the Treasury requesting an analysis of how the repeal of the ACA would affect health care coverage in the United States, particularly during the COVID-19 pandemic

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October 20, 2020

To: The Honorable William Barr, Attorney General, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530

Dear Attorney General Barr:

We write to urge the Department of Justice to immediately rescind its support of the lawsuit in California v. Texas asking the Supreme Court to declare the Affordable Care Act (ACA) unconstitutional and invalidate the law in its entirety. Passed in 2010, the ACA dramatically expanded the number of Americans with health insurance. Destroying this progress and ripping away critical protections is cruel on its face. Looking to do so in the midst of a nearly unprecedented public health emergency--a coronavirus disease 2019 (COVID-19) pandemic that has claimed over 220,000 American lives and infected over 8 million people--is especially unconscionable./1

Among other critical provisions, the ACA made it illegal for insurance companies to deny insurance coverage for the 133 million Americans with pre-existing conditions./2 Before the ACA, insurers could exclude coverage of care associated with pre-existing conditions; charge higher health premiums based on a person's health status or gender; limit certain benefits like mental health treatment, prescription drugs, or maternity care associated with pre-existing conditions; and impose lifetime or annual caps on benefits./3

Despite these essential protections, you are currently in court seeking to invalidate the ACA in California v. Texas./4 The Supreme Court will hear arguments in the case on November 10, 2020./5 The President is currently working to fill the late Justice Ruth Bader Ginsburg's Supreme Court seat with his nominee, Judge Amy Coney Barrett, in time for the November 10th arguments. Barrett's nomination is a key component of the President's self-stated goal to "terminate" the ACA./6 Analysts predict that at least 20 million Americans would lose health coverage if the ACA were overturned./7 That number is now likely far higher: an estimated 5.4 million Americans lost their employer-sponsored health insurance between February and May of this year as a result of the pandemic, and millions more Americans lost their jobs--rendering many eligible for the ACA's exchanges and Medicaid expansion provisions./8

Because of the pandemic, uninsured rates could spiral even further if the ACA's pre-existing conditions protections are overturned. Health experts warn that, without the ACA, health insurers could classify COVID-19 as a pre-existing condition and deny COVID-19 survivors health insurance./9 While much remains to be understood about the long-term health impacts of the disease, there is increasing evidence of patients feeling the effects of COVID-19 beyond the average known time of recovery. The Centers for Disease Control and Prevention (CDC) cites on its website a preliminary study of the largest cohort of reported persons with COVID-19 in which roughly 20% of those studied presented with severe to critical illness symptoms, including dyspnea, hypoxia, respiratory failure, shock or multiorgan system dysfunction./10 Another CDC study found that over one-third of symptomatic adults who tested positive for COVID-19 "had not returned to their usual state of health" two to three weeks later./11 In July, the Journal of the American Medical Association published a detailed review of 143 patients who had been hospitalized with COVID-19, finding that 12.6% were symptom-free within two weeks of being discharged; a significant number still suffered from fatigue, difficulty breathing, joint pain, and chest pain, with many suffering multiple symptoms./12

These risks are not confined to the elderly: the CDC is "investigating reports of multisystem inflammatory syndrome in children (MIS-C) associated with [...] COVID-19, which may present with Kawasaki disease-like features."/13 Anecdotal reports confirm that even young people can suffer from severe chronic symptoms,/14 and the CDC found that among younger adults (ages 18-34) with no previously existing chronic medical conditions who were symptomatic and tested positive for COVID-19, "one in five had not returned to their usual state of health" after two to three weeks./15

According to Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases at the National Institutes of Health, "I have never seen a virus or any pathogen that has such a broad range of manifestations [...] Even if it doesn't kill you, even if it doesn't put you in the hospital, it can make you seriously ill."/16 And medical experts warn that:

[W]hile some patients may fully recover [...] others will suffer long-term damage, including lung scarring, heart damage, and neurological and mental health effects. [...] Other preliminary evidence, as well as historical research on other coronaviruses like severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS), suggests that for some people, a full recovery might still be years off. For others, there may be no returning to normal./17

Without ACA protections, individuals who face long-term effects of COVID-19 could be considered "uninsurable" in the individual market altogether, and anyone who ever tested positive for COVID-19 could be denied coverage or kicked off their insurance, impairing their ability to access care for complications from the disease or any other health issues for years in the future./18 Individuals who never contract COVID-19 could be at risk for discrimination from health insurers, too. Health insurers may assume people who seek COVID-19 tests too frequently are at higher risk for coronavirus exposure and discriminate against them in their coverage. If the ACA is overturned, health insurers could even be allowed to discriminate against people if they thought individuals with certain occupations put them at higher risk of contracting the disease./19

The Department of Health and Human Services estimated that as many as 133 million people--or 51% of Americans--had pre-existing health conditions before the pandemic that could have led them to be "denied coverage, or offered coverage only at an exorbitant price" without the ACA./20 With the outbreak of COVID-19 in the United States, that number has likely increased./21 It is unconscionable for the Department of Justice to pursue this lawsuit in the midst of this unprecedented public health crisis, and we urge you to rescind your support of these efforts immediately.

See signatories and footnotes here: https://www.warren.senate.gov/imo/media/doc/2020.10.20%20Letter%20to%20DOJ%20re%20ACA%20and%20COVID-19%20as%20a%20Pre-existing%20Condition.pdf