PHOENIX -- Two Republican legislators and Attorney General Mark Brnovich are taking the first steps to craft legislation to ensure that Arizonans with pre-existing conditions can still buy health insurance if federal courts strike down the Affordable Care Act.
The move comes even as Republican attorneys general -- including Brnovich -- actually are working to have the law declared unconstitutional, including the provisions about access to coverage. They contend that Congress lacks the power to mandate that people buy health insurance.
Last December a federal judge in Texas agreed. That sent the case to the 5th Circuit Court of Appeals which could rule any day.
But the final word is likely to belong to the U.S. Supreme Court. Depending on how quickly they schedule arguments, a ruling could come as early as this spring.
The law, approved by what was at the time a Democrat-controlled Congress, has never been popular among many Republicans.
But Sen. J.D. Mesnard, R-Chandler, said that if the Affordable Care Act disappears, so does the provision requiring insurers to provide coverage for those with preexisting conditions. And he acknowledged that particular part of the statute in particular remains popular.
"I think there's growing appreciation that we want to make sure that those with preexisting conditions aren't now somehow unable to get coverage,'' he said.
How that would work and who would pay for it, however, remains to be decided.
"There are obviously going to have to be conversations with a wide assortment of folks, including insurance companies that will obviously be impacted by this,'' Mesnard said. And those costs, he said, are likely to be passed on to all people with health insurance, no matter where and how it is purchased.
"I suspect there'll be a domino effect for all of us to be impacted by this potentially in our premiums,'' Mesnard said. "But at the end of the day I think that most people acknowledge that the preexisting conditions issue has always been a challenge, and one that we have to overcome.''
The wide-ranging 2010 law required employers to provide health insurance for their workers and individuals to obtain their own coverage. It also created insurance exchanges to provide discounted coverage for those who meet income guidelines, expanded Medicaid coverage and eliminated lifetime monetary caps on insurance coverage.
And then there was the prohibition against insurance companies from excluding people for preexisting conditions.
The Supreme Court upheld the law in 2012, with the majority hanging its hat on the mandate for individuals to purchase insurance, saying that fits within the power of Congress to impose a tax.
But all that fell apart in 2017 when Congress eliminated the financial penalty for failing to have insurance, a move that the current round of challengers eliminated any legal basis for the law. It is that, Mesnard said, that creates the need for a contingency plan if the Supreme Court finds the current version of the law unconstitutional.
"We don't want to be caught unprepared,'' he said.
Mesnard said he believes Arizonans should not have to go back to the days before the Affordable Care Act when they could find themselves unable to purchase insurance.
"From a policy standpoint, I think it's the right policy to make sure that those with preexisting conditions can get coverage,'' he said. And Mesnard said while there can be debate over other provisions of the law, this issue is "one that most people on both sides of the aisle have rallied behind as an issue we have to tackle.''
None of this would be necessary if there were no lawsuit, one in which Brnovich has joined. But aide Ryan Anderson defended his boss' decision to join the litigation to challenge the law.
"There is a question here as to whether or not the act, as it stands today is unconstitutional,'' he said. Anderson said that is separate from the policy questions of whether there should be mandated coverage for preexisting conditions and whether more needs to be done to ensure that Americans have better access to health care.
"Those are all very discussions and appropriate discussions,'' Anderson said. But what they also are, he said, is irrelevant to the underlying legal question.
"The fact of the matter is, if you believe something is unconstitutional, the ends shouldn't justify the means,'' he said.
"He personally believes that preexisting conditions should be covered by insurance companies,'' Anderson said of Brnovich. "But that doesn't mean the American people should be forced to accept a broader unconstitutional mandate in order to keep the act's most popular provision.''
Anyway, Anderson said, the lawsuit was already being pursued by others, with a coalition of states led by Texas Attorney General Ken Paxton.
All that, he said, still leaves the question that Brnovich said he is working with Mesnard and Rep. Jeff Weninger, R-Chandler, to address -- and soon: What will happen to Arizonans if the entire law is struck down.
"What we're proposing here is to do a narrow-focused introduction with coverage for preexisting conditions,'' Anderson said.
A court ruling voiding the Affordable Care Act xould have effects beyond the issue of preexisting conditions that this proposal hopes to resolve.
Arizona was one of the states that took of the provision which provided federal dollars to expand health coverage to anyone earning up to 138 percent of the federal poverty level, about $29,400 for a family of three. Prior to that, Arizona law, as approved by voters, included coverage only up to the poverty level.
That added about 400,000 people to the rolls of the Arizona Health Care Cost Containment System, the state's Medicaid program, bringing the current total to close to 1.9 million. If the Affordable Care Act goes away, so does the federal cash which pays almost the entire cost of the expansion.
Mesnard said it is possible that the Supreme Court could leave the Medicaid expansion piece in place even if the rest of the law is voided.
And if not?
"I'm prepared to consider all options,'' he said. And Mesnard said his views won't be colored by the fact that he voted in 2013 against the proposal by then-Gov. Jan Brewer to expand Medicaid.
"Opposing a new thing is one thing,'' he said. "And sort of rolling back something that's already in place is another.''