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Recent examples of states enacting pre-existing condition protections post-2017 repeal attempts
Executive summary
Several states have taken steps since 2017 to enshrine protections for people with pre‑existing conditions into state law or to study ways to preserve key Affordable Care Act (ACA) safeguards if federal rules change; earlier reporting counted at least 15 states with such laws or studies as of 2019–2020 and identified Colorado, Massachusetts, New York, and Virginia as having statutes that would preserve key ACA protections if the federal law were overturned [1] [2]. However, analysts and policy groups warn that state-level fixes are uneven and can’t fully substitute for federal protections — particularly for people covered by self‑funded employer plans that are governed by ERISA [2] [3].
1. What states have moved to lock in protections — and when
A 2019 review and contemporaneous reporting documented a wave of state action after repeated federal repeal efforts: at least 15 states (Connecticut, Delaware, Florida, Hawaii, Indiana, Louisiana, Maryland, Maine, New Hampshire, New Jersey, New Mexico, Nevada, Oregon, Vermont, and Washington) enacted laws by 2019–2020 to create or study protections against pre‑existing condition exclusions or to require coverage of ACA essential health benefits; earlier work also identified Colorado, Massachusetts, New York, and Virginia as having laws that would preserve key ACA protections if federal rules changed [1] [2] [3]. Reuters summarized that roughly two dozen states had some level of protection as the ACA faced court challenges in 2018 [4].
2. Why states acted: federal repeal attempts and court challenges
These state moves were driven by the political and legal battles over the ACA after 2017: Congressional repeal efforts that year — including the House‑passed American Health Care Act and Senate proposals like Cassidy‑Graham — plus ongoing litigation such as Texas v. Azar (and later challenges) prompted states to pursue backstops for consumers [5] [2]. Advocacy and policy groups repeatedly warned that federal rollback would leave large gaps unless states codified protections [3] [5].
3. What state laws can — and can’t — do
State laws can guarantee guaranteed‑issue, community rating, bans on pre‑existing condition exclusions, and state‑mandated essential health benefits for insurers licensed in the state; some states have indeed written multiple ACA elements into state code [2] [3]. But state laws cannot reach people covered by self‑funded employer plans, because ERISA preemption limits state regulation of those plans — roughly 60% of people with job‑based coverage are in self‑funded plans — so state protections would not fully replicate federal reach [2].
4. Practical limits and financial risks acknowledged by analysts
Policy analysts caution that requiring guaranteed coverage at the state level without federal reinsurance, subsidies, or market rules can spur premium spikes or insurer exits, as happened in pre‑ACA experiments; the Commonwealth Fund and other reviewers note that some state efforts may be unsustainable without the ACA’s interlocking financial supports [2] [3]. That means protections on paper could produce higher costs in practice unless states pair them with affordability measures [3].
5. Who benefits most from state protections — and who remains exposed
State codification helps individual‑market consumers and those buying small‑group coverage from state‑regulated insurers; it may leave people with employer‑sponsored self‑funded plans, and those in multi‑state plans, exposed because states cannot regulate ERISA plans [2]. Also, experts flag that losing federal premium tax credits — which would accompany a full federal repeal — would make coverage unaffordable for many even where state protections remained [3].
6. Competing perspectives and political context
Proponents of state fixes argue they are a prudent insurance policy against federal rollback and can preserve rules locally [2]. Opponents and skeptical analysts point out that state‑only approaches are incomplete and historically produced market instability when states alone tried to guarantee coverage without broader market supports [3] [2]. Political actors have offered divergent messages: some national leaders rhetorically promised to protect people with pre‑existing conditions while supporting or proposing alternative federal plans that experts say would weaken protections [5] [6].
7. What to watch next (based on available reporting)
Monitor which states update or expand statutes to mirror all four core ACA consumer protections (guaranteed issue, adjusted community rating, ban on pre‑existing exclusion periods, essential health benefit requirements), whether states create state‑level premium subsidies or reinsurance to keep markets stable, and litigation or federal rule changes that affect ERISA preemption — reporting to date emphasizes gaps and the importance of federal policy for full, durable protection [3] [2].
Limitations: available sources summarize state activity through 2019–2020 and analyze legal constraints and risks, but they do not provide a complete, up‑to‑date list of every state law enacted after 2017; for a current state‑by‑state statute inventory consult the cited policy reviews and state legislative records [1] [2] [3].