Tennessee families, advocates fear outcome of state attorney general’s challenge to Affordable Care Act

Sept. 05--This story was updated Sept. 5, 2018, at 6:30 p.m.

NASHVILLE -- Families and activists on Wednesday urged Tennessee Attorney General Herbert Slatery to bail out of a pending federal lawsuit in Texas that challenges the constitutionality of the federal Affordable Care Act.

Critics warn that 2.7 million Tennesseans with preexisting medical conditions would lose protection against discrimination by insurers if the legal action filed by officials in 20 states, including 18 Republican state attorneys general, succeeds in overturning the ACA, widely known as Obamacare.

A ruling declaring the law unconstitutional also would threaten the ACA's ban on lifetime dollar caps on payouts by insurers for cancer and chronic illnesses, they said.

Oral arguments in the lawsuit began Wednesday morning before a federal judge in Fort Worth. Slatery joined the litigation, led by Texas Republican Attorney General Ken Paxton, back in February.

Kathryn Corley of Signal Mountain, a mother of two children with preexisting conditions, warned in a statement the lawsuit "leaves the people of Tennessee behind. People with preexisting conditions like asthma or cancer need greater access to health care, not less."

She said children with "special needs are especially vulnerable. I can't comprehend why our attorney general wants to take away health care from people who need it."

Earlier this year, Slatery issued a news release when he entered the lawsuit, arguing that when the U.S. Supreme Court in 2012 narrowly upheld the ACA's "core" provision, the individual mandate to obtain insurance coverage, it was because the court viewed the penalty for not complying as a "tax."

He said while Congress' 2017 tax overhaul repealed the insurance-related tax, lawmakers left the mandate intact. But, Slatery argued, the Supreme Court had already held that Congress had no authority to impose the individual mandate on Americans without invoking its taxing authority. Thus, he said, "since the ACA is dependent on the individual mandate, the ACA itself is now unconstitutional."

Advocates held a news conference at Tennessee's state Capitol, telling reporters they met earlier in the day with two of Slatery's top assistants. The attorney general himself was in Texas for the court proceeding.

Joseph Sheehan with the Protect My Care group said the officials told him and other attendees that "they're not making this decision to enter into this lawsuit in a moral vacuum. They couldn't tell us what that moral ground was. They believe that they're here to assert that all laws should be constitutional and to eliminate laws that are not."

He questioned why the majority of states aren't participating in the lawsuit and are "actually arguing the other side."

Jen Yamin, a Hendersonville mother, said her 24-year-old son has had special needs since birth. She and her husband moved to Tennessee some years back so her husband could take a job with a company that provided health insurance.

She said the preexisting needs provision "protects our family from financial ruin and ensures our son's access to appropriate health care without living in fear of not being covered because of something he could not control, his premature birth.

"Twentieth Century medicine saved our son's life," she said. "I just can't believe that 21st Century inhumane thinking and partisanship could curtail it. Health care is a human right. Period."

Slatery's office had no immediate response to the criticisms.

As the federal court considers the ACA's constitutionality, a new tracking poll by the Kaiser Family Foundation says the public, including most Republicans, wants protections for people with preexisting conditions preserved.

Seventy-five percent of those surveyed say it is "very important" to retain ACA provisions that prevent insurance companies from denying coverage based on a person's medical history, while 72 percent don't want the companies to charge sick people more. The foundation said that includes majorities of Democrats, independents and Republicans.

Back in June, U.S. Sen. Lamar Alexander, R-Tenn., chairman of the Senate health committee, said regarding the Texas lawsuit that "there's no way Congress is going to repeal protections for people with preexisting conditions who want to buy health insurance."

He called the U.S. Department of Justice's argument in the Texas case "as far-fetched as any I've ever heard. Congress specifically repealed the individual mandate penalty, but I didn't hear a single senator say that they also thought they were repealing protections for people with preexisting conditions."

Actually, Alexander said, Republicans are looking to expand insurance options for Americans with preexisting conditions through a new U.S. Department of Labor rule. It would make lower-cost employer insurance with patient protections available to the self-employed and more employees of small businesses, Alexander said.

WPLN, Nashville's public radio station, quoted Republican Gov. Bill Haslam, whom Slatery served as legal counsel before his appointment as attorney general by the Tennessee Supreme Court, saying he'll "leave that to the attorney general to make those calls" on lawsuits.

Haslam also told WPLN that "to me, there have always been issues around the way the Affordable Care Act was passed and the way [Congress] went about it, in terms of expanding care without making the hard decisions about how do we control costs."

Contact staff writer Andy Sher at [email protected] or 615-255-0550. Follow him on Twitter @AndySher1.

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