In an attempt to invalidate the proviso of the ACA that prevents insurance companies from charging higher premiums to people with pre-existing conditions, the Department of Justice has joined a lawsuit against the Affordable Care Act brought by several conservative states. Critcs say that the legal basis for the suit is weak, but the political reasoning behind the DoJ action seems even weaker. The ACA as a whole has been gaining steadily in popularity. According to a Huffington Post poll of polls, a majority opposed the law until late 2017, but support now exceeds opposition by 50.4 to 39.5 percent.

Stranger still, the pre-existing condition proviso, targeted by the DoJ, is the most popular single feature of the ACA. Even back when a majority still opposed the ACA as a whole, a Kaiser poll found that strong majorities across parties supported protections for people with pre-existing conditions.

The lawsuit highlights a key problem in health care policy: Many chronic conditions are inherently uninsurable. Conventional standards require that an insurable risk must be fortuitous and that an actuarially fair premium must be affordable. Conditions like Type 1 diabetes meet neither criterion. For someone with diabetes, a lifetime need for insulin (and other care) is no longer a matter of chance – it is a certainty, and an actuarially fair premium would often exceed the income of the insured person. Overturning the proviso would not just mean raising premiums for those affected. Rather, many would lose access to health care altogether. As many as 50 million Americans could be affected.

Congress needs to come up with a fix. Any such fix – universal catastrophic coverage would be my first choice – should be implemented in an orderly fashion while ACA protections continue. A quick fix implemented under the emergency conditions that would prevail if the courts suddenly declared the ACA unconstitutional would be unlikely to result in a fair and lasting solution.