In a brief filed late Thursday night, the Trump administration asked the U.S. Supreme Court to strike down the entire Affordable Care Act.
While Solicitor General Noel Francisco wrote that "nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue" when it voted to eliminate the tax penalty for not having insurance, both of the Republicans in Montana's congressional delegation said Friday they wanted to see a popular provision of the act — protections for those with preexisting conditions — continue.
The two Republicans, U.S. Rep. Greg Gianforte and U.S. Sen. Steve Daines, voted for the 2017 tax bill that, among many other things, ended the individual mandate. Democrat U.S. Sen. Jon Tester voted against it.
The brief filed Thursday is in a case before the high court that started as a lawsuit out of Texas. That state's attorney general argued the ACA, which is also called Obamacare, is invalid because when Congress did away with the tax penalty for not carrying insurance, the law became unconstitutional.
At the end of 2018 a Texas federal judge struck down the entire ACA, though the law is still in place awaiting a decision from the U.S. Supreme Court. The Trump administration has said it wants to protect care for those with preexisting conditions, but it's not clear how it would do that if the high court invalidates the ACA.
Montana Attorney General Tim Fox, a Republican, in April 2019 joined with Ohio's Republican Attorney General to oppose the 2018 ruling, saying that while they didn't dispute the individual mandate is unconstitutional, they wanted it to be severed from the law and the rest of the ACA to stand. Fox told Lee Newspapers at the time his concern was securing coverage for those with preexisting health conditions.
The state Department of Justice said Friday that neither Fox nor his chief deputy, Jon Bennion, was in the office and able to comment on the administration's brief.
A Kaiser Family Foundation Health Tracking poll published May 27 found that "the public has remained deeply divided on the health reform law since it was passed in March 2010." The poll found 51% of all adults had a favorable opinion of the law, while 41% had an unfavorable opinion. Views by party are deeply divided, however, with 80% of Democrats seeing the law as favorable compared to 19% for Republicans. About 12% of Democrats view the law as unfavorable, while 73% of Republicans do.
The law has expanded access to health care and protected those with preexisting conditions, but premiums and drug costs have risen since its passage.
Both Gianforte and Daines have in the past called for and voted for versions of repealing and/or replacing the ACA. Tester has said he supports improvements to the law, but that its repeal would harm Montana.
A spokesperson for Republican U.S. Rep. Greg Gianforte said Friday the congressman "thinks a legislative approach to fixing our broken health care system is the way to go."
“Greg believes we must fix our broken health care system," the spokesman said, "and that any reforms must protect people with preexisting conditions, reduce costs, and preserve rural access to care … ."
Gianforte is running for governor this year and defeated Fox in the June 2 primary. In an interview in May, he expressed support for Medicaid expansion, which was created under the ACA. Montana expanded Medicaid in 2015 and the program covers about 95,000 people.
“Medicaid expansion provides a safety net for people that can’t take care of themselves,” Gianforte said in May. “My primary concern with the program is that if we allow everyone to climb on the safety net and it collapses under the weight, it won’t be there for the people that really need it."
A spokesperson for U.S. Sen. Steve Daines said Friday the senator "supports whatever mechanism will protect Montanans from this failed law, lower health care costs, protect those with preexisting conditions and expand access to health care for Montanans."
The spokesperson also said Daines, who is up for re-election this year, wants to see the ACA "repealed and replaced," and that the senator "will continue working to ensure those with preexisting conditions are protected and that all Americans have access to care during COVID."
Republicans have worked to do away with the ACA since its passage and that message was a major part of President Donald Trump's 2016 campaign. Since his election, however, the party has fallen short of accomplishing that, even when they held both the House and Senate.
Sen. Jon Tester, the lone Democrat in Montana's delegation, ripped the administration's brief in a statement Friday.
"This cruel and reckless action would endanger the lives of millions of Americans with preexisting conditions, imperil Montana’s rural and frontier hospitals, and put thousands in our state at risk of going bankrupt," Tester said.