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The head-spinning health care dispute in the Missouri Senate race, explained

Dylan Scott covers health care for Vox. He has reported on health policy for more than 10 years, writing for Governing magazine, Talking Points Memo and STAT before joining Vox in 2017.

Josh Hawley, Missouri attorney general and Republican candidate for Senate, says he wants to protect people with preexisting conditions. Whatever gave you the idea he didn’t?

In his own words, from this rather remarkable 30-second spot:

We’ve got two perfect little boys. Just ask their mama.

Earlier this year, we learned our oldest has a rare chronic disease. Preexisting condition. We know what that’s like.

I’m Josh Hawley. I support forcing insurance companies to cover all preexisting conditions. And Claire McCaskill knows it.

You deserve a senator who’s driven to fix this mess, not one who’s just trying to hang on to her office. And that’s why I approved this message.

Yet at the same time, Hawley’s name is signed to a legal complaint that would overturn the Affordable Care Act in its entirety — including the Title I protections for preexisting conditions.

In fact, Hawley and the 20 states, including Missouri and Texas, that sued to invalidate Obamacare want to go further than the Trump administration. The states argued that the whole law — tax subsidies, Medicaid expansion, the works — must be overturned once the Republican tax bill repealed the law’s individual mandate. (Read more on why legal scholars think this is an especially ridiculous argument.)

”Plaintiffs are entitled to a permanent injunction against defendants from implementing, regulating, or otherwise enforcing any part of the ACA,” their complaint reads in conclusion, “because its requirements are unlawful and not severable from the unconstitutional individual mandate.”

The White House has instead said “only” that the rules that bar health insurers from denying people coverage or charging them higher premiums based on their medical history needed to be thrown out. “Only.”

But we’re splitting hairs here: The legal position that Hawley is formally supporting right now is that the current federal protections for people with preexisting conditions should be invalidated.

So how on earth can he release a 30-second video saying he supports protecting preexisting conditions? I asked his campaign. This is what Kelli Ford, a spokesperson for Hawley’s Senate campaign, told me:

The Texas v. Azar lawsuit is about the individual mandate and Obamacare. It’s unconstitutional for the government to force us to buy something we don’t want.

Josh wants Congress to mandate that insurance companies cover everyone with preexisting conditions. Sen. Claire McCaskill would have you believe that the only way to do it is through Obamacare. That’s a lie and she knows it. But that’s how Chuck Schumer and Claire McCaskill plan to win control of the Senate. They are putting politics ahead of patients, and they will do nothing to fix the health care mess they created.

Josh is committed to covering those with preexisting conditions, and we don’t have to break the Constitution to do it.

There is some sleight of hand here: Hawley’s camp implies the litigation is narrowly focused on the individual mandate, but the entire law is at risk under the legal theory deployed by Texas, Missouri, and the other states.

Hawley is right, of course, that Congress could pass a new law protecting preexisting conditions. Senate Republicans have already introduced a bill to ostensibly do so, though it appears to leave a loophole that would still put people at risk of discrimination by insurers.

But then you have to wonder: What good are those protections without the rest of Obamacare? If insurers have to cover everyone, then they raise their prices to cover the costs of insuring sick people. Obamacare has provided premium tax credits to help people afford health coverage anyway — and millions of people rely on them right now to pay for their insurance. What would they do without them? If anything, many experts think the current subsidies are too small — Republicans, in their various repeal proposals, wanted to make them even smaller.

We know that Medicaid expansion has helped keep rates lower in states that elected to extend eligibility for the program under Obamacare. If the expansion is reversed, as the Texas lawsuit argues it should be, then the pool for private insurance is likely to become sicker, and therefore, the costs for private coverage will keep going up — again, without the tax credits to soften the blow of rising rates.

So Hawley supports a lawsuit that reverses Obamacare’s preexisting conditions protections, and the provisions that make them possible even without an individual mandate, while putting his faith in Congress to pass a brand new health care bill to reinstitute those protections. A Congress that manages to pass landmark health care legislation maybe — maybe — once a decade.

I’ve heard of having your cake and eating it too, but this is something else. Nothing better illustrates the funhouse-mirror health care politics we are currently living under than Hawley’s contortions to support a lawsuit opposing Obamacare (always a safe Republican bet) while still claiming he supports preexisting conditions (because to say otherwise would be a big political problem — these protections are super popular).

Hawley is right about one thing: Democrats in red states are betting big that supporting preexisting conditions — and pointing out that the Republican health care plans would roll back their protections — can carry them to an unlikely November victory.

This story appears in VoxCare, a newsletter from Vox on the latest twists and turns in America’s health care debate. Sign up to get VoxCare in your inbox along with more health care stats and news.

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