Dianne Feinstein Opens Barrett Hearings With a Great Big Whopper About Preexisting Conditions

(CSPAN screenshot)

The Senate Judiciary Committee began hearings on the nomination of Amy Coney Barrett today, and Ranking Member Senator Dianne Feinstein (D-Calif.) let everyone know what the Democrat members’ focus would be. On November 10, the Supreme Court will begin hearings on Texas v. California, which challenges Obamacare’s constitutionality. Feinstein was careful to refer to the legislation as the Affordable Care Act.


Judge Barrett has gone on the record stating that she felt Justice John Roberts’ majority opinion in National Federation of Independent Business v. Sebelius went beyond the ACA legislation’s scope to preserve the statute. For those who don’t remember, he classified the individual mandate as a “tax.” As the federal government has the ability to levy a tax, this fell within the scope of federal power.

The Trump administration has repealed the individual mandate, thereby leaving the legislation on tenuous legal ground. The questions before the Court are: (1) Whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act; and (2) whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere.

Feinstein also previewed that these hearing will be full of emotional, albeit questionable, stories. As the camera panned to the full room, you could see large pictures behind each Democrat senator, representing tearful stories, to be sure. The stories bring into stark relief the difference between Democrats’ and Republicans’ views of the Court. Emotional arguments may be compelling, but the Court should be deciding whether a law is constitutional.

To begin the emotional argument, Feinstein launched the preexisting condition lie:


Feinstein asserts that more than 130 million Americans will lose preexisting coverage if the ACA is repealed. Not all Americans will lose preexisting condition coverage. In the 1996 Health Insurance Portability and Accountability Act (HIPAA), employer-based plans were barred from denying coverage or charging higher premiums based on health status, including gender and age.

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It also put into place rules about preexisting conditions. Pregnancy is no longer allowed to be considered one, and it only applies to conditions if a person is diagnosed within the six-month period before obtaining coverage. The maximum waiting period to receive coverage for the condition is 12 months. If you change employers, as long as the coverage gap is not greater than 63 days, it is illegal to impose any preexisting coverage exclusion on your new employer plan. COBRA coverage is also mandated if you leave or lose the job that provided insurance to ensure you can cover any gap greater than 60 days at your employer’s full negotiated premium.

Further, according to FactCheck.org, 6% of Americans get their insurance through the individual market. Meanwhile, 49% get their insurance through employer-based plans. Those Americans would immediately receive the protections under HIPAA for preexisting conditions. HIPAA could easily be amended to eliminate waiting periods in the six-month window that currently exists. The remaining Americans are covered by Medicare and Medicaid, which have their own rules regarding coverage.


Repealing Obamacare would also allow insurance companies to provide a wider range of plan designs. Lower-cost catastrophic plans with discounts for preventative care or prescriptions may be attractive for many younger individuals. The ACA makes those unavailable today outside of short-term gaps. More choice seems like a better way to insure more people.

One of the fatal flaws for the ACA going forward is that younger, healthier individuals do not wish to pay the premiums on the individual market, and there is no longer a penalty for not doing so. Even when the individual mandate was in force, it was often cheaper to pay the penalty that the insurance premium. The so-called “Cadillac tax,” or excise tax on employer-based plans, has also been repealed during the Trump administration. The young use less care but pay the same premium as those who are older and sicker under Obamacare, and the penalty on employer plans required them to fund the individual market plans fully.

Feinstein’s other bizarre assertions about lack of care for women is really a cover the ACA’s abortion and contraceptive coverage. Greater freedom in plan design would either cover preventive care, or it wouldn’t. Individuals would be able to choose among options. Preventive care would go by the current medical practice guidelines for age and gender. Insurers have a lot of financial incentives to offer and encourage these services. Early detection leads to less expensive care.


Another strange assertion by Feinstein was the story she told about her constituent. According to her recitation, Christina Garcia was thrilled to obtain coverage through the ACA in 2010. That is amazing because California did not open their exchange until 2013 for enrollment in 2014. Before that, there were some subsidies available that maxed out at $5,200 per year. Also, acute surgeries, like C-sections, are not considered preexisting conditions that would cause someone to be denied coverage as Feinstein asserted in this constituent’s case.

In reality, the ACA caused some tragic stories for those in employer-based plans and those on the individual market. As many have asserted, health insurance is not healthcare. Premiums and deductibles have risen dramatically over the last several years, with many employers moving to high-deductible plans to control costs. Many people find themselves unable to afford healthcare because their insurance, even on the open market, costs so much.

When you listen to Democrats’ sob stories, you can scroll through the replies to this thread. Not only did Obama lie about keeping your doctor, but he also lied about saving $2,500. At the end of the day, the cost of healthcare is not at issue for SCOTUS. The only question the Court needs to answer is whether the Constitution allows the federal government to manage healthcare in the absence of levying a “tax.”





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