KEY POINTS

  • The Affordable Care Act will go before the Supreme Court Nov. 10, which would have a 6-3 conservative edge if Amy Coney Barrett is confirmed
  • Ted Cruz, R-Texas, said that "100 out of 100 senators agree we're going to protect preexisting conditions"
  • Donald Trump signed an executive order purported to do so, but experts say it does little in practice

Donald Trump and congressional Republicans are scrambling to reassure voters that they would not dismantle popular protections for patients with preexisting conditions as the Supreme Court prepares to hear arguments against the Affordable Care Act. With only an executive order in place and no congressional bill in sight, however, experts say their actions amount to little more than campaign promises. 

Ted Cruz, R-Texas, took to the airwaves Monday to tell CNBC that even if the ACA is  struck down following the oral arguments beginning Nov. 10, Senate Republicans will preserve its protections for patients with preexisting conditions.

“Every Republican agrees we're going to protect preexisting conditions,” he said. “What [Democrats] are talking about is what they think politically resonates. But 100 out of 100 senators agree we're going to protect preexisting conditions.”

He also went on offense, shifting the topic to free speech and religious liberty.

“The Democrats don’t want to talk about the radical left-wing positions of their justices, restricting free speech, taking away your rights … trying to limit religious liberty, trying to take away your right to live according to your faith and your conscience,” he said.

Cruz did not elaborate on how precisely his opponents were attempting to do that.

Trump signed an executive order Thursday purportedly preserving the ACA’s protections should it be struck down. It reads:

“It has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.”

Experts, however, say that this amounts to little more than a statement of intent that a policy should be made. Allison Hoffman, a professor of law with the University of Pennsylvania, told Politifact and KHN that executive orders can’t compare to a congressional mandate.

“The language itself guarantees nothing near the protections in the Affordable Care Act, and such sweeping protections are only possible by congressional action, not regulation,” she said.

The proceedings are even more fraught because arguments would begin after the November presidential election, a time by which Trump has said he wants to confirm Amy Coney Barrett to the court. Barrett was chosen to fill the late Ruth Bader Ginsburg’s seat in part because of her strong stance against the ACA. Her presence on the court would give the conservative wing a 6-to-3 advantage.

Trump has repeatedly said that he would protect patients with preexisting conditions and that he has a health care plan ready to go. He said as much in a recent town hall but was fact-checked by the moderator.