A pro-Obamacare group released a new TV ad on Monday that charges President Trump’s pick for the Supreme Court to replace retiring Justice Anthony Kennedy would overturn Obamacare’s protections for people with pre-existing conditions.
The ad from Protect Our Care comes as a lawsuit from Texas and 18 states charges that the repeal of Obamacare’s individual mandate penalties means that the law’s requirement to purchase insurance can no longer be justified as a constitutional exercise of Congressional taxing power, and thus must be struck down along with other parts of the law. The Justice Department has decided to not defend Obamacare, and has argued that the pre-existing conditions ban must go because it is inextricably linked to the mandate.
The group said that the Trump administration plans to install a Supreme Court justice to replace retired Justice Anthony Kennedy that will side with the lawsuit. Trump has said he plans to make a decision by July 9 and Senate Majority Leader Mitch McConnell wants the pick confirmed by the fall.
“The Trump administration has already gone to court to overturn protections for people with pre-existing conditions like asthma, diabetes and cancer,” Campaign Director Brad Woodhouse said in a statement. “Now, Donald Trump is trying to install a Supreme Court justice who will tip the balance in his favor. It’s an emergency.”
The ad is airing nationally and in Maine and Alaska, the homes of centrist GOP Sens. Susan Collins of Maine and Lisa Murkowski of Alaska. Both senators support abortion rights and opposed repealing Obamacare last year alongside Sen. John McCain, R-Ariz.
But legal experts note that Kennedy had previously voted against Obamacare, most notably in 2012 when the court narrowly ruled 5-4 to uphold the individual mandate as a tax. The ruling also required states to decide whether they wanted to expand Medicaid.
Chief Justice John Roberts ruled in favor of Obamacare, joining the liberal wing of the court to uphold the law.
Josh Blackman, associate law professor at the South Texas College of Law in Houston, however, said “I don’t know that Kennedy’s replacement will make much of a difference in the ACA challenge.”
The suit has drawn criticism even among critics of Obamacare, who contend that by passing the tax law, Congress has in fact determined that the individual mandate could be separated from the rest of the law, and thus a court could uphold the pre-existing conditions ban regardless of what it does about the mandate.
