Kids Forward: Lawsuit threatens healthcare for people with pre-existing conditions

MADISON, WI – A lawyer representing Wisconsin Attorney General Brad Schimel argued in a federal court yesterday that the Affordable Care Act is unconstitutional. Wisconsin Solicitor Gen. Misha Tseytlin told the judge “the entire ACA should fall” and asked the judge to suspend the law immediately.

The Wisconsin Attorney General’s office is playing a leading role in the case, Texas v. United States, challenging the health care law’s validity. The lawsuit, which is being heard in Fort Worth Texas, was initiated by the Texas and Wisconsin attorneys general, as well as 16 other attorneys general and two governors.

A ruling in favor of the plaintiffs could block all of the ACA, including the subsidized insurance Marketplace that provides coverage for more than 200,000 Wisconsinites, the requirements for coverage of young adults on their parents’ insurance, the elimination of copays for access to preventative care, and a wide range of consumer protections.

Although all of the law could be overturned, the portions that appear to be most at risk are the popular provisions protecting insurance coverage of the care needed by people with pre-existing conditions. The U.S. Justice Department and various legal experts say that a decision striking down parts of the law, rather than all of it, would have to strike down the protections for coverage of pre-existing medical conditions.

According to the Kaiser Family Foundation, an estimated 852,000 Wisconsinites have health conditions that could potentially be excluded from insurance coverage if the Affordable Care Act is overturned. Prior to enactment and implementation of the ACA, it was common for insurance companies to deny coverage of services needed by people with conditions like diabetes, depression, asthma, cancer, and high blood pressure.

Jon Peacock, research director at Kids Forward, expressed concerns about the pending litigation. “If our Attorney General prevails in this lawsuit, it would not be long before a very large number of Wisconsinites are unable to get affordable insurance coverage for critical medical services.”

Schimel and the other plaintiffs argue that the ACA is now unconstitutional because the tax overhaul passed by Congress late last year eliminated the tax penalties for people who do not comply with the requirement to have insurance. Although many legal scholars disagree with that reasoning, U.S. Attorney General Jeff Sessions and the Justice Department have refused to defend the law.

According to Peacock, the pending litigation is just one of several threats to the current consumer protections in the ACA. He noted, for example, that the Trump administration recently finalized federal rules that broadly expand the “short-term” insurance plans that are exempt from ACA requirements, such as coverage of pre-existing conditions.

“That rule creates a huge loophole in the ACA’s consumer protections,” Peacock said. “If Wisconsin policymakers want to protect coverage for people with pre-existing medical conditions, they need to adopt state statutes or regulations that plug the loopholes being created by the Trump administration.”

A new Q&A report from Kids Forward provides a comprehensive look at the current state of coverage for people with pre-existing conditions under the ACA and what is at risk if the law is repealed by Congress or struck down by the courts. The report also summarizes the Trump administration’s actions that threaten the law’s consumer protections, and it examines what states can and cannot do to protect consumers if litigation or administrative actions undercut the federal law.

Read and download the full report, Q&A: Insurance Coverage for Pre-existing Conditions, on the Kids Forward website.


Kids Forward advocates for effective, long-lasting solutions that break down barriers to success for children and families in Wisconsin. Using research and a community-informed approach, Kids Forward works to help every kid, every family, and every community thrive.


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