Murkowski ‘disturbed’ by Justice Department attack on coverage of pre-existing conditions

WASHINGTON — Alaska Sen. Lisa Murkowski hopes states will defend the Affordable Care Act's protections for people with pre-existing medical conditions, given the Trump administration's recent decision to abandon its defense of the law.

"I have been more than a little bit disturbed by the statement coming out of the Department of Justice that they are not going to defend this aspect of the ACA," Murkowski said in an interview. It was the one thing everybody agreed on, she said.

The 2010 ACA included a provision that required health insurance companies to offer protection to people with pre-existing conditions, without ratcheting up costs to prohibitive levels. It was the rare part of the "Obamacare" law that enjoyed bipartisan support, even amid Republicans' yearslong effort to repeal it.

In December, Congress eliminated the tax penalty for not having insurance. A few months later, 20 states sued the federal government, arguing that without the mandate, all of Obamacare is unconstitutional.

Earlier this month, DOJ said "that because of the individual mandate being pulled out that they can no longer defend the pre-existing condition requirement, (that it is) somehow unconstitutional. I don't understand their rationale behind that, and I don't accept that," Murkowski said.

The administration's argument is "a little narrower" than that of the state attorneys general, said Aviva Aron-Dine, vice president for health policy at the left-leaning Center for Budget and Policy Priorities. The Trump administration is focused only on the mandate to offer coverage to people with pre-existing conditions, not the entire law.

Murkowski, Alaska's senior Republican senator, campaigned on repealing the ACA and argued that there should be no mandate for people to purchase insurance coverage or face a fine. But she, like most Republicans in Washington, ultimately wanted to see the pre-existing conditions rule stay.


And last summer, Murkowski irked some of her colleagues and President Donald Trump when she refused to vote in favor of an ACA repeal bill that included major changes to Medicaid funding.

But Murkowski also said she doesn't think that Trump is really behind his Justice Department's decision. "I don't think the president accepts it. You'll recall that all throughout the debate last year, the president on down said, 'Nope, we are not going to disturb the provisions that provide for those that have pre-existing conditions to have that ability to gain that coverage eroded,' " she said.

Despite her dislike of the administration's approach, Murkowski was not too concerned that it be successful in court.

"I think (the policy) will withstand a legal challenge," she said. "I think you will have states defend it" in court, she said.

Aron-Dine said she feels confident that the court will say that Congress was well aware of the link between the pre-existing conditions coverage requirement, and the mandate that was meant to keep people from waiting until they got sick to seek insurance coverage.

"Whether or not Congress made a good decision to get rid of the mandate in light of wanting to keep the pre-existing conditions exclusion, they made that decision," Aron-Dine said.

At this time last year, the only thing "that everyone could come together around was that we were going to protect coverage for those with pre-existing conditions," Murkowski said. "We were going to argue about everything else."

Aron-Dine noted that Murkowski even wrote an op-ed in the Fairbanks Daily News-Miner that said the repeal of the mandate shouldn't impact the rest of the ACA.

Alaska Independent Gov. Bill Walker said June 18 that he was disappointed with the administration's decision to back away from supporting the pre-existing conditions policy.

The decision "threatens health care coverage for many in our states with pre-existing conditions and adds uncertainty and higher costs for Americans who purchase their own health insurance," Walker said.

He and a group of governors asked the administration to reverse its decision. Walker and the bipartisan group have been working on their own framework for improving health care.

"And so now to see this, I think this is just the administration's effort to erode away so much of the underpinning of the ACA that everybody turns against it," Murkowski said.

Erica Martinson

Erica Martinson is a former reporter for the Anchorage Daily News based in Washington, D.C.