The upcoming Senate battle over a Supreme Court nomination is sharpening the focus on the 2010 health care law on the campaign trail before a high-stakes oral arguments hearing to determine the law’s future, which will be held just a week after the election.

In a campaign in which health care was already a top issue for voters, the death of Justice Ruth Bader Ginsburg raised the risks for the law signed by President Barack Obama that expanded insurance coverage to more than 20 million people. The Trump administration is arguing that the justices should strike down all of the law, including its popular protections allowing young adults to stay on their parents’ insurance and requiring coverage of preexisting medical conditions. The Supreme Court has not said when it would rule on the lawsuit after the Nov. 10 arguments.

Democrats are highlighting the upcoming threat, with party leaders drawing a straight line from the health care law to the COVID-19 pandemic to the Supreme Court. Former Vice President Joe Biden is raising the specter of COVID-19 creating preexisting conditions for the millions of Americans who have had it or could become infected.

President Donald Trump counters by saying he will release his own health care plan, with aides suggesting policies could be announced as early as Thursday.

Biden’s focus on the 2010 law is trickling down to congressional races, in which many candidates were already focusing on health care, said Brad Woodhouse, executive director of Protect Our Care, a group that advocates for the health care law.

Woodhouse said it’s been hard to make voters aware of the lawsuit, but said he expected the Supreme Court fight to heighten the issue, especially in Senate races

“More Americans, if not most voters, by the time they go to the polls, will understand the importance of this Supreme Court fight for the future of health care,” he said.

A Sept. 17 analysis by the Wesleyan Media Project found that 31.7 percent of Biden campaign advertisements mentioned health care, compared with 26.1 percent of the Trump campaign’s. The Biden campaign mentioned COVID-19 in 53.6 percent of ads, compared with 27.9 percent for the Trump campaign.

A Biden ad released last week features a father whose son was born with a preexisting condition. “Donald Trump is looking to roll back those protections for preexisting conditions in the middle of a pandemic. It’s mind-blowing,” he says.

The Trump campaign’s recent ads have focused more on the economy, but noted that research on a vaccine for COVID-19 is progressing and common safety protocols are in place to prevent the spread of the coronavirus.

Before Ginsburg’s death, a September Kaiser Family Foundation poll found that health care had dropped to voters’ fifth-highest priority for presidential candidates. Health care had previously been a top issue, but the economy, the coronavirus outbreak, policing, and race relations all ranked higher this month, reflecting events over the last six months.

Liz Hamel, the Kaiser Family Foundation director of public opinion and survey research, said that doesn’t mean that health care wasn’t a strong message for candidates, but that it may get drowned out. She had warned there was time for health care to emerge as a higher priority for voters before Election Day.

Democratic focus

Democrats made no secret of their intention to make health care a pillar of their campaigns, after the issue dominated the party’s presidential primary and after they won back control of the House in 2018 by focusing on defending the 2010 law and its preexisting condition protections.

“Health care is the No. 1 issue that people care about. I can tell you this from being on the ground in a congressional district that Donald Trump won,” Rep. Cheri Bustos, D-Ill., the Democratic Congressional Campaign Committee chairwoman, said last week on a press call.

The DCCC has released ads attacking Republicans including Reps. Rodney Davis, R-Ill., Ann Wagner, R-Mo., and John Katko, R-N.Y., for their health care positions.

“Rodney Davis was handed nearly $200,000 in campaign contributions from Big Pharma, and he voted to hand them $40 billion in new tax giveaways. Davis even voted against a bipartisan plan to lower the costs of our prescription drugs,” one ad released Tuesday says.

The Democratic challengers in key Senate races are taking varied approaches to how they are discussing health care issues and whether they focus on their Republican opponent or Trump, according to a messaging memo by Protect Our Care summarizing how six Democratic challengers for the Senate and six Democratic House incumbents discuss health care and the COVID-19 pandemic. The memo covers Senate races in Arizona, Colorado, Iowa, Maine, Montana and North Carolina, all races that could determine which party controls the chamber next year.

The Democratic challengers’ talking points “are consistently about protecting people with pre-existing conditions, lowering drug costs, and protecting and expanding the Affordable Care Act,” the memo reads.

The memo, compiled before Ginsburg’s death, finds that many Democratic challengers began their campaigns talking about health care issues, including preexisting conditions. Sens. Martha McSally, R-Ariz., and Steve Daines, R-Mont., have run ads to defend their health care records, although both have voted to weaken preexisting condition coverage.

“Preexisting conditions politics were already playing out in Senate races, kind of similarly to how they played out in House races in 2018,” Woodhouse said.

Republican rebuttal

Trump said last week during an ABC town hall he would release a health care plan before the Nov. 3 election, repeating a claim he’s previously made. Several times during the summer he said he would release a plan within “two weeks.”

This week, he will highlight health care during visits in the South. 

“President Trump is going to continue to take bold action and keep his commitment to protect individuals with pre-existing conditions,” White House Deputy Press Secretary Judd Deere said in an email. “This week in Charlotte, the President will lay out more details on his vision to deliver on his promise of quality healthcare at low costs both now and in the future.”

“It’s an important question on voters’ minds and there’s lots of problems in the health care system,” said Joel White, president of Horizon Government Affairs and a former Ways and Means Republican staffer, who said he expected Trump to issue a plan before the election. “He wants to articulate what the game plan is going forward.”

Although Trump hasn’t proposed a new plan for health insurance, the administration has released several rules expanding the types of insurance plans people can purchase, such as association health plans, and extending how long customers can stay on a short-term plan that does not have to offer all the benefits required by the health care law. Both of those rules are currently in court. He also recently offered executive orders expressing an interest in lowering prescription drug prices.

Down-ballot Republicans are following Trump’s lead in talking about coverage for preexisting conditions. Sen. Cory Gardner, R-Colo., released an ad this month featuring his mother, who beat cancer. He cited a bill he introduced this year to guarantee coverage for preexisting conditions and ensure people with preexisting conditions can’t be charged more for that coverage — “no matter what happens to Obamacare,” Gardner says in the spot, using the commonly used name for the health care law.

Some experts say the bill would not provide the same protections available under current law.

With the fate of the health care law considered at greater risk by some legal experts with the change in the Supreme Court’s makeup, Trump could face more pressure to release a plan showing how about 20 million people at risk of losing coverage would replace it if the law were struck down. Several Republican senators said they hadn’t seen or been briefed on a plan from Trump but would welcome one.

“It’d be helpful to remove the whole idea — you still hear it — that some people are saying that we would not protect preexisting conditions,” said Sen. Thom Tillis, R-N.C.

While Republicans say they support preexisting conditions guarantees, many Republicans have voted to at least weaken the existing protections in current law.

Tillis, who is running against Democratic challenger Cal Cunningham, has faced attacks on his record on preexisting conditions and on prescription drug prices. Inside Elections with Nathan L. Gonzales rates his race a Toss-up.