The first minutes of Tuesday’s presidential debate immediately turned to how President Donald Trump’s Supreme Court nominee to replace Justice Ruth Bader Ginsburg could undo the Affordable Care Act and its protections for people with preexisting conditions.

“There’s 100 million people that have preexisting conditions,” said former Vice President Joe Biden, the Democratic nominee, arguing that those patients could lose coverage protections if the federal health law were declared unconstitutional by the high court.

Protecting guarantees of coverage for people with medical issues is a key campaign issue. It’s among the ACA’s most popular provisions, and polling indicates that most Americans support keeping these protections in place.

Biden, who worked with then-President Barack Obama on the ACA’s enactment, is a strong supporter of the law. Trump, meanwhile, has called repeatedly for the law to be repealed and is backing a lawsuit by a group of Republican state attorneys generals trying to overturn it. The Supreme Court will hear oral arguments in the case Nov. 10.

The ACA guarantees that those with preexisting conditions cannot be denied coverage by health insurers. Despite promises that he will protect people with medical issues, Trump has not offered an alternative proposal to do so. He issued an executive order on health care Sept. 24 that included a commitment to preserving that safeguard, but legal experts said the executive order holds no enforcement power.

After Biden’s comment at the debate, Trump retorted, “There aren’t a hundred million people with preexisting conditions.”

We thought it was important to figure out if this number was right, especially as the ACA’s future hangs in the balance.

Estimates Vary

The Biden campaign provided us with several pieces of evidence to back up the candidate’s 100 million statistic, including a September article in The New York Times, a 2017 issue brief from the Department of Health and Human Services during the Obama administration and a 2018 estimate from Avalere, a health care consulting firm.

We consulted several health policy experts who also pointed us to the HHS brief and the Avalere estimate. They also cited a 2019 analysis from KFF, a nonpartisan health policy organization. (KHN is an editorially independent program of KFF.)

The HHS issue brief, published in January 2017, estimated that between 61 million and 133 million Americans have a preexisting condition.

The number varies based on how a preexisting condition was defined.

In the more conservative estimate of 61 million, a preexisting condition was defined as an illness or condition, such as cancer, cystic fibrosis or heart failure, that would qualify a person for a high-risk insurance pool. High-risk pools were in place before the ACA to help people with serious and expensive-to-treat illnesses gain health coverage. They were operated by some states, as well as by the federal government, but generally covered very few people and were a drain on government budgets.

But that 61 million number doesn’t include everyone who has a preexisting condition, said Linda Blumberg, an institute fellow in the Health Policy Center at the Urban Institute.

“That’s because it’s only capturing the conditions that people had which were in high-risk pools prior to the ACA,” said Blumberg. “We know from a lot of studies that we’ve done that insurance companies would write people up or deny them coverage for conditions that wouldn’t necessarily put you in a high-risk pool.”

Before the ACA, health insurance companies could deny you coverage for a condition as mild as seasonal hay fever.

“Insurance companies had tools they could use to protect themselves from risky people,” said Sabrina Corlette, co-director of the Center on Health Insurance Reforms at Georgetown University in Washington, D.C. “They would dig through your medical history, and if they found something that might impose additional costs for them, they could do a variety of things.”

Corlette said those tools included the ability to deny coverage outright, charge individuals with preexisting health conditions higher premiums, or decide to offer them health insurance, but not cover the preexisting condition or the body part affected.

With that larger definition, the number HHS offered is 133 million people.

More recent estimates cite similar figures.

A 2018 analysis by Avalere, a health care consulting firm, estimated that 102 million Americans have preexisting conditions. A 2019 analysis by the left-leaning Center for American Progress suggested 135 million people.

And a 2019 analysis by KFF found that 54 million people have a preexisting condition that would likely make them completely uninsurable.

“The 54 million estimate is who wouldn’t have been able to be covered at all,” explained Cynthia Cox, director for the program on the ACA at KFF and one of the authors of the analysis.

“But, I think realistically, there are certainly over 100 million people who have a condition that would have caused them some trouble to get insurance on the individual market,” said Cox. “The 100 million includes both the 54 million who wouldn’t get coverage at all as well as the millions of others who might have had an exclusion or might have had to pay a higher premium.”

Based on the HHS estimate, Blumberg said, she would consider Biden’s 100 million figure conservative.

“If anything, he’s somewhat on the low side,” she said. “I think he was being cautious with range and that is appropriate.”

Why It Matters

While the number of individuals who have a preexisting condition varies based on the analysis, it’s clear that many Americans have a condition that could make it difficult to get comprehensive health insurance — or any insurance at all — if the ACA were overturned, said the experts.

And that’s the real point.

“It’s easy to forget what was common practice before the ACA for insurance companies to use various tactics to dictate coverage,” said Corlette. “So, the 100 million, 133 million, 54 million numbers are almost immaterial. The fact is, a heck of a lot of people will face these tactics from insurance companies if these protections disappear.”

Jonathan Oberlander, a health policy professor at the University of North Carolina-Chapel Hill, agreed that the different numbers shouldn’t obscure the central idea: “The ACA provides strong consumer protections and access to health insurance for persons with preexisting conditions, and if the ACA goes away, so, too, will those protections, jeopardizing health coverage for millions of Americans.”

However, not all think that the ACA will be overturned if Trump is successful in getting his nominee, Amy Coney Barrett, confirmed as a new Supreme Court justice.

“The Supreme Court isn’t going to overturn the ACA,” said Joseph Antos, a health policy scholar at the right-leaning American Enterprise Institute. “The Supreme Court has an unbroken history since the 1700s of not expanding upon the specific case that is brought before them, so the idea that somehow preexisting condition protections will be tossed out by the Supreme Court is fairly absurd.”

Whoever is elected Nov. 3 will have to deal with the court’s decision. Although the arguments come next month, it’s unlikely a ruling will be issued until 2021.

Our Ruling

The experts all agreed that Biden was certainly in the ballpark with his estimate of 100 million people having preexisting conditions. His figure was even a little low based on a range provided in an HHS report, said one expert.

But a wide range of people — from 54 million to 135 million — could be affected, according to our reporting. Also, it is unclear how many people with preexisting conditions would be at risk of losing their insurance entirely, or facing higher costs or having their conditions excluded from coverage. Though Biden’s number is certainly within this range, he would need to provide more detail to support such a definitive number.

We rate Biden’s claim Mostly True.

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