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L4GG's Statement for the Record on 9/25/17 Hearing to Consider Graham-Cassidy Amendment

· Healthcare

The statement below was submitted (by Lawyers for Good Government) for the record on Monday, September 25, 2017 hearing to consider the Graham-Cassidy-Heller-Johnson proposal.

Dear Chairman Hatch, Ranking Member Wyden, and Members of the Committee:

Lawyers for Good Government strongly opposes the Graham-Cassidy-Heller-Johnson Amendment to H.R. 1628, introduced on September 14, 2017. We urge you to reject this fatally flawed effort to repeal and replace the Affordable Care Act (ACA).

Lawyers for Good Government is a nationwide coalition of more than 125,000 lawyers, law professors, law school deans, paralegals, law students, and other legal professionals with members in all fifty states and the District of Columbia. Our mission is to protect and strengthen democratic institutions, resist abuse of power and corruption, and defend the rights of all those who suffer in the absence of “good government.”

“Good government” requires accountability to the people, rather than special interests, corporate interests, or the self-interest of elected and appointed officials.

This accountability can only be maintained by keeping government proceedings as transparent as possible, including holding regular public hearings, providing for public comment, and following the process and procedures laid out under the Constitution and laws of the United States—in other words, what has been called “regular order.” The process by which this proposal has come before the Committee has been, to say the least, highly irregular.

This amendment, which would fundamentally restructure one-sixth of the U.S. economy, as well as the federal and state governments’ roles in regulating health care coverage, may come to a vote only two weeks after the legislative text was released. Further, given the budget reconciliation process being used to rush this bill to a vote, there may be as little as two minutes of debate on the floor of the Senate. The American people deserve a return to the bipartisan legislative process that has endured for more than two centuries, rather than a radical bill pushed through as a completely partisan response to the signature achievement of the previous administration.

“Good government” also requires the protection of human rights, and we believe that access to affordable, quality health care is a human right.

While there has not been --- and, according to most press reports, will not be – a detailed analysis from the Congressional Budget Office of this proposal’s impact on insurance coverage, private non-partisan groups have estimated that as many as 32 million people may be added to the ranks of the uninsured, leaving approximately 60 million Americans without coverage.[1] There is certainly room for debate as to government’s role in providing health insurance coverage, but any measure that would result in more than 18 percent of Americans losing access to affordable health care is unacceptable and a violation of those individuals’ essential rights as human beings.

In addition to massive coverage losses, the Graham-Cassidy amendment would fundamentally change the commitment made to the American people more than 50 years ago by restructuring the Medicaid program.

Funds from the Medicaid expansion under the ACA would be lumped together with tax credits for individual premiums, as well as other federal ACA funding, in a block grant parceled out to the states to do with as they see fit. Under the proposed formula for calculating the block grants, total federal spending for these ACA programs would be cut by approximately $243 billion over the next seven years. To make matters worse, the bill contains no requirement that the block grant funds be spent on offering coverage and/or financial assistance to the low- and moderate-income families who need it. At the same time, the “traditional” Medicaid program would be cut by approximately $164 billion in the same time frame, as the amendment would limit the federal contribution to the program to a set per-capita amount, regardless of the actual costs to the states.[2] This will dramatically reduce the coverage and care available to more than 73 million Americans who rely on the Medicaid system. This is, quite simply, a violation of the pledge our nation made more than 50 years ago to “never … be indifferent toward despair, … turn away from helplessness, … [or] spurn those who suffer untended in a land that is bursting with abundance.”[3]

With these cuts in financial assistance, health insurance would become costlier for those who need it most, and many policies would also provide less coverage.

While the bill would retain the ACA’s ban on denying coverage to people with pre-existing conditions, states would be given the option to obtain waivers from the “essential health benefits” defined by the ACA. Practically speaking, this means it will be much more difficult for people (particularly the poor) to obtain coverage for mental health and addiction treatments, preventive care, maternity care, and many other necessary services. Unlike previous iterations of this plan, the Graham-Cassidy amendment also offers no funding dedicated to confronting the causes and effects of the opioid crisis afflicting much of our nation.

The Graham-Cassidy amendment would also severely restrict women’s access to reproductive health services, including abortion. The bill would ban the use of ACA subsidies to pay for insurance plans that cover abortion services, both at the individual and small business levels. It would also implement the long-held desire of some in Congress to “defund” Planned Parenthood by banning (for one year) federal funds under Medicaid or the ACA to organizations meeting a list of criteria that are oddly specific.[4] The legislative text provides no rational or other basis for restricting the use of federal funds for non-abortion services, such as family planning services, cancer screenings, and other women’s health services provided by Planned Parenthood clinics. Of course, aside from being bad policy, this provision is of questionable constitutional validity, given the numerous state statutes that have been struck down in the courts as unconstitutional violations of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Article I prohibition on “bills of attainder.”[5]

The supporters of this proposal have touted as its primary strength the idea that it allows the states to function as “laboratories of democracy, allowed to innovate to find solutions.” Yet, citing some misplaced idea of fairness, this plan would drastically cut funding for Medicaid, ACA exchanges, cost-sharing reductions, and other federal health subsidies to states that committed to making the Affordable Care Act work for their citizens. While experimentation and innovation are critical to the success of any policy, it would be irresponsible at best for the federal government to turn the health insurance market into a “Wild West” of varying levels of coverage, subject to political whim.

As attorneys, it is our obligation to “seek improvement of the law.”[6] While the Affordable Care Act is far from perfect, the proposed Graham-Cassidy amendment makes no improvement to the law as it stands now. Rather, it upends the entire health care system in this country to benefit the few, at great cost to the many.

We hope that the members of the Committee, as well as all members of Congress, will listen to what President Lincoln referred to as “the better angels of our nature,” reject this proposal, and return to the bargaining table with an aim toward strengthening our nation’s health care system and provide greater access to care for all.


Traci Feit Love

President & Executive Director

Lawyers for Good Government


[1] See Jacob Leibenluft, Edwin Park, Matt Broaddus and Aviva Aron-Dine, “Like Other ACA Repeal Bills, Cassidy-Graham Plan Would Add Millions to Uninsured, Destabilize Individual Market,” (Center on Budget and Policy Priorities: September 20, 2017), available at

[2] See Elizabeth Carpenter and Chris Sloan, “Graham-Cassidy-Heller-Johnson Bill Would Further Reduce Federal Spending to States by $215 Billion” (Avalere Health: Sept. 20, 2017), available at

[3] President Lyndon B. Johnson, Remarks with President Truman at the Signing in Independence of the Medicare Bill, July 30, 1965, available at

[4] See Graham-Cassidy-Heller-Johnson Amendment, § 118(b).

[5] See, e.g., Planned Parenthood of Central N.C. v. Cansler, 804 F. Supp. 2d 482, 492-98 (M.D.N.C. 2011) (discussing the Supreme Court’s ruling in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), that an “unconstitutional condition” may be created when “the Government has placed a condition on the recipient of the subsidy, rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.” Id. at 196-97, 111 S.Ct. at 1774.)

[6] Model Rules of Prof’l Conduct, Preamble, ¶ 6 (2016).

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