Supporting the lawsuit would putGOP candidates at odds with many voters who want pre-existingconditions covered, while opposing it would alienate conservativeswho want the Democratic law undone. (Photo: Shutterstock)

A Republican-led lawsuit seeking to nullify Obamacare will be spotlighted in courtin the final months of congressional election campaigns, givingDemocrats political fodder and sending GOP candidates incompetitive races looking for cover.

Oral arguments seeking to block the health-care law were set forWednesday in federal court in Fort Worth, Texas, in a case thatTexas and 19 other Republican-led states brought against thefederal government.

Related: 5 FAQs about the Obamacare lawsuit being heard thisweek

The Trump administration's Justice Department has taken theunusual step of siding with Texas — instead ofdefending the federal law — in the states' bid to persuade a judgethat various aspects of the Affordable Care Act should be tossedout, including protecting people with pre-existing medical conditions.

The arguments come at a difficult time for Republicans as theytry to defend their control of the House and Senate in the Novemberelections while many Democrats make health care a central issue intheir campaigns. The court case will help them to put GOPcandidates in competitive races on the defensive.

Supporting the lawsuit would put GOP candidates at odds withmany voters who want pre-existing conditions covered, whileopposing it would alienate conservatives who want the Democraticlaw undone.

Uniting Democrats

It may be a gift for Democrats, who enjoy an advantage on thehandling of health care in surveys after repeated efforts by GOPlawmakers to repeal the 2010 law. Preserving the provision thatguarantees coverage for pre-existing conditions unites Democratsacross the political spectrum.

“The fact that this lawsuit is taking place in September meansthat the GOP's health-care agenda — the way they're trying toincrease premiums and cut coverage for preexisting conditions —will be front and center for voters minds,” said David Bergstein, aspokesman for the Democratic Senatorial Campaign Committee.

A spokeswoman for the National Republican Senatorial Committeedidn't return messages seeking comment.

To gain a House majority, Democrats need to flip 23 seats, aprospect that independent analysts say is within reach. The partywill have a tougher time gaining two seats to control the Senate,where Democrats have 26 seats to defend, compared with just eightfor Republicans.

The lawsuit has become an issue in the West Virginia Senaterace, where incumbent Democrat Joe Manchin is in a tight race withRepublican Patrick Morrisey in a state that Trump won in 2016.Manchin has aired a TV ad connecting Morrisey to the lawsuit, withtestimonials from West Virginians with illnesses.

In another close Senate race in Missouri, the Democratic groupMajority Forward is running a spot against Republican candidateJosh Hawley, for backing the Texas lawsuit as state attorneygeneral. Hawley is challenging Senator Claire McCaskill in anotherstate carried by Trump.

In the House, Democratic candidates in competitive races arehighlighting support for pre-existing condition rules, includingAftab Pureval in Ohio and Josh Harder in California. Tyler Law, aspokesman for the Democratic Congressional Campaign Committee, saidthe party intends to highlight the lawsuit in competitivedistricts.

Health poll

An Aug. 23-28 survey released Wednesday by the nonpartisanKaiser Family Foundation found that three in four Americans saidit's “very important” that Obamacare's protections for pre-existingconditions remain law, including majorities of self-identifiedDemocrats, Republicans and independents.

Yet some GOP strategists said the Democrats' strategy wouldbackfire.

“It's a massive gamble on the part of the Democrats” tohighlight the Affordable Care Act in Republican leaning states likeMissouri, said Brad Todd, a GOP strategist with clients in Houseand Senate races. “It's going to blow up. Obamacare is still awinning issue for us.”

Todd said the Affordable Care Act's consumer protections may bepopular but that full Affordable Care Act doesn't need to remain inplace to preserve them. “Voters believe you can fix the preexistingcondition protections and get rid of the rest of Obamacare,” hesaid.

Guy Cecil, who leads the Democratic super-political actioncommittee Priorities USA, said the group will likely highlight thelawsuit in its upcoming ad campaigns aimed at winning seats in theelection.

“Ever since Republicans came close to repealing the AffordableCar Act, health care has consistently ranked as a top issue inevery survey and exit poll,” Cecil said in an email.

Staying quiet

But while Republican lawmakers sided with previous lawsuits thatwould have overturned or weakened Obamacare, many are neitherendorsing nor denouncing this one. Senator Chuck Grassley, an IowaRepublican who is chairman of the Judiciary Committee, declined tosay when asked if he supports the Texas suit.

The complaint alleges that the Affordable Care Act isunconstitutional after Congress last year zeroed out the taxpenalty for not complying with the requirement to buy insurance.The challengers argue that because the individual mandate was acore component of the original law, the rest of it should bedeclared unconstitutional. The Wednesday arguments will be over theplaintiffs' motion for a preliminary injunction.

“The legal argument is clever, but ultimately baseless inprinciple and an extreme long-shot as a practical matter,” saidJonathan Adler, a law professor at Case Western Reserve Universitywho helped craft a Republican-backed lawsuit that would've weakenedObamacare, but failed at the Supreme Court in 2015.

In an attempt at damage control, 10 Senate Republicans —including Nevada's Dean Heller, the most endangered GOP senator onthe 2018 ballot — have offered legislation that would reinstateprotections for pre-existing conditions if the lawsuit issuccessful. The bill contains carve-outs that would make thoseregulations weaker than they are under current law, said LarryLevitt, a health policy expert with the nonpartisan Kaiser FamilyFoundation.

“With the uncertainty of the outcome in the upcoming Texas v.United States case, this legislation is needed now more than everto give Alaskans, and all Americans, the certainty they need thatprotections for those with pre-existing conditions will remainintact,” said Republican Senator Lisa Murkowski of Alaska, whovoted against her party's push to repeal the Affordable CareAct.

Senator Susan Collins, a Maine Republican, said the legislationdoesn't go far enough in protecting sick people because it fails toreinstate ACA rules that require a minimum package of benefits inmost insurance policies.

The case is Texas v. U.S., 4:18-cv-00167, U.S. District Court,Northern District of Texas (Fort Worth).

— With assistance by Steven T. Dennis

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