In terms of presidential politics, Colorado has lost a bit of its luster as a battleground state. That's not the case if you look at the contested race for the Senate. The winner of the contest between incumbent Republican Sen. Cory Gardner and his Democratic challenger, former Gov. John Hickenlooper, will most likely be the lynchpin for whoever gets control of the chamber.
You've seen the almost inescapable TV political ads between the two, now you can get the backstory.
“Cory wrote the bill to guarantee cover for people with preexisting conditions, forever … no matter what happens to Obamacare” (Gardner campaign ad “Forever”)
“I can’t understand how Cory Gardner can be trying to take health care away from people in the middle of this crisis.” (Hickenlooper campaign ad “Hugs”)
“Why did Cory Gardner vote with the insurance companies nine times to eliminate protections for people with pre-existing conditions?” (from an ad by the Democratic-aligned dark money group Duty and Honor)
Health care has emerged as a central issue of the U.S. Senate campaign in Colorado.
Republican incumbent Sen. Cory Gardner, who for much of his first term voted with his party in a years-long attempt to dismantle the Affordable Care Act, has recently taken steps to portray himself as a defender of people with pre-existing medical conditions.
In August, Gardner introduced a one-page bill that says health insurers “may not impose any pre-existing condition exclusion... factor health status into premiums or charges, exclude benefits relating to pre-existing conditions from coverage, or otherwise exclude benefits, set limits, or increase charges based on any pre-existing condition or health status.”
“Let's protect people with preexisting conditions. Let's have a patient-centered health care system that actually takes care of people that work with their doctor,” Gardner said at his first debate with challenger John Hickenlooper.
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His critics say both the bill and his words are an empty gesture from someone who has long tried to repeal the law that created those protections.
“You know what’s the cruelest lie of all? It’s the fact that Cory Gardner’s willing to sit here and say that he has a plan to protect people with pre-existing conditions,” Hickenlooper said during that debate.
The Affordable Care Act, also known as Obamacare, has become more popular during President Donald Trump’s time in office. The GOP has failed dramatically in its attempts to finally repeal the law — and can’t agree on how to replace it. Now, Democrats believe that it’s a winning issue against Gardner, one of the most endangered and important Republican incumbents.
Gardner added another wrinkle in early October. He joined five other Republicans to cross party lines and vote for a Democratic bill that would have prevented the Trump administration from participating in efforts to strike down the ACA in court. The debate is especially timely because a case against the ACA is pending before the U.S. Supreme Court.
Despite his vote, Gardner’s office wouldn’t say whether he wants Republicans to back away from the overall legal effort to invalidate the ACA. Instead, his office said the vote was a tactical move to advance his own bill on pre-existing conditions.
“It’s too little, too late. He’s had all this time over the decade since the Affordable Care Act was passed to stand up for it, and people like me. And now in the 11th hour, with his election in danger he wants to protect pre-existing conditions,” said Laura Packard, a cancer survivor and progressive health advocate.
Here’s what we know about Gardner’s stance on health care, based on his votes and his own proposal.
What does Cory Gardner think about the ACA?
Democrats passed the Affordable Care Act in 2010 under President Barack Obama. It required everyone to have health insurance; created new marketplaces for the sale of plans; set standards for basic insurance benefits; and said that insurance companies must offer plans — at their regular prices — for people with pre-existing health conditions.
In general, Republican replacement proposals have focused on getting rid of the individual mandate, narrowing the scope of benefits that plans must offer; and allowing plans to require customers to pick up a higher share of the costs, according to Jessica Mantel, co-director of the Health Law & Policy Institute at the University of Houston.
But Gardner’s specific views on what the health care system should look like in the future are less clear.
Gardner has voted numerous times against the ACA, starting as a Congressman and later as a Senator. He supported all three of the Republicans’ major attempts to demolish the law in 2017, including efforts to repeal it and to replace it.
“I’ve said all along that we would repeal and replace the Affordable Care Act. That’s exactly what we have to do,” Gardner said after those votes in 2017. “The Affordable Care Act has hurt Coloradans.”
At times, though, Gardner has split with his colleagues. For example, that same year he signed a letter with three other Republicans, stating they would “not support a plan that does not include stability for Medicaid expansion populations or flexibility for states.”
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The ACA had allowed states like Colorado to expand Medicaid, offering health benefits for millions of people nationally and hundreds of thousands in Colorado. The expansion is credited with slashing Colorado’s uninsured rate in half, from about 14 percent to closer to 7.
Yet Gardner later voted “yes” in a procedural vote for the GOP’s failed Better Care Reconciliation Act, which would have cut federal funding for the Medicaid expansion. The BCRA also would have allowed higher premiums for older adults and it would have repealed a payroll tax that funds Medicare, the health care program for older people. (Gardner said that the bill would be amended, but it didn’t survive long enough for further debate.)
Those major Republican efforts to repeal or reform the law may have motivated new support for the ACA — creating a more complicated political situation today.
“It really wasn't until the ACA was on the chopping block in 2017, when you had President Trump and Congress trying to repeal it, that people started to learn more about what would be lost,” said Sabrina Corlette, founder of the Center on Health Insurance Reforms at Georgetown University’s McCourt School of Public Policy.
“And then it became a very potent issue in 2018 with the midterm congressional elections.”
Republicans have had a particularly hard time agreeing on a replacement because of their conflicting goals, Mantel said.
“They care about access to affordable care. They care about not wanting to exclude preexisting conditions,” Mantel said.
“But they also want to preserve individual choice and autonomy. They also want to keep the price tag low and there's tension between those goals. And I think that's part of why the Republicans have had a really hard time coming up with a piece of legislation that would replace the Affordable Care Act.”
One thing they did accomplish: With Gardner’s support, Republicans eliminated the ACA’s “individual mandate” penalty, which was meant to encourage people to buy insurance. Gardner also has supported smaller changes in the health markets, including his support with Gov. Jared Polis of the state’s reinsurance program.
What has Gardner proposed himself?
In August, Gardner introduced his own bill: the Pre-Existing Conditions Protection Act. It singled out one of the most popular parts of the ACA, its protections for people who previously couldn’t get reasonably priced health care because of pre-existing medical conditions.
“My bill is simple – it guarantees coverage for people who have pre-existing medical conditions and ensures that people cannot be charged more because of a pre-existing condition,” Gardner said at the time.
But three health policy experts interviewed by Colorado Public Radio said that the bill was short and vague, leaving questions about what it was meant to accomplish.
“It's hard to say what (Gardner’s) intentions were with the bill, but it has a glaring loophole that would effectively mean that people with preexisting conditions could be denied health insurance, based on their health status,” Corlette said.
Gardner’s bill is only 117 words, and it’s missing a key point, the experts said. It prevents insurers from charging people with preexisting conditions more but doesn’t guarantee that insurers have to sell them a policy in the first place.
“You could see an insurance company saying, ‘We are simply going to walk away from providing insurance to these persons, period. We just have chosen not to insure them’,” said James Hodge, Center for Public Health Law and Policy at Arizona State University.
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“That's a big problem … It doesn't even define what a preexisting condition is and without working definitions, that actually has no legitimate meeting other than what a court might assign to it.”
Gardner’s office affirmed that the bill was meant to force insurance companies to sell insurance policies to people with pre-existing conditions, despite the experts’ doubts.
“This bill was drafted to explicitly prohibit insurance companies from denying coverage or charging more for people with pre-existing conditions – and that is what it accomplishes,” wrote spokesperson Annalyse Keller.
“I wrote the bill,” Gardner said at the recent debate.
In the same debate, he also named health care goals like allowing insurance sales across state lines.
The bill is open to interpretation because it is so brief, according to the health experts CPR spoke with. The Affordable Care Act and its proposed replacements run into the hundreds and thousands of pages.
“I have never seen a piece of healthcare legislation intended to address access to healthcare that was so short,” Mantel said of Gardner’s legislation. “Health care is incredibly complex and to see such a tiny bill, that's only a few sentences long, is shocking. I mean, it makes you wonder how serious a bill is.”
Why does it matter?
The Affordable Care Act will soon be considered by the Supreme Court in the case Texas v. California.
Health experts are split on the question of how much damage that case could do to the law. Hodge was skeptical that the ACA could be thrown out altogether. Still, he thinks Gardner and other lawmakers are trying to reassure voters in the face of a legal threat driven by Republicans.
“That's almost what it's being used as, in my mind, is just a placeholder for what would be left,” Hodge said.
Corlette said that the appointment of a conservative Supreme Court justice could change the equation for the upcoming case when it is heard in the coming months. Gardner has said he supports President Donald Trump’s efforts to seat a new replacement before the election.
“We're really at a precipice, with respect to this law and the protections that it provides to millions of Americans,” she said.
If the law is struck down, the future of the country’s health care policy may again rest with Congress. And Gardner’s Senate race could be crucial in determining who controls the chambers.
You've Read About Cory Garder, What About John Hickenlooper's Health Care Position?
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