Reproductive health and rights advocates believe the fate of health insurance coverage for pregnancy and maternal care may be uncertain due to a pending lawsuit against the Affordable Care Act and a new measure proposed by Sen. Thom Tillis (R-NC) purporting to protect coverage for people with pre-existing conditions.

Tillis’ Ensuring Coverage for Patients with Pre-Existing Conditions Act comes in response to a lawsuit brought by 20 Republican-led state attorneys general challenging the constitutionality of the entire Affordable Care Act (ACA). In an unusual move, the Trump administration’s Department of Justice (DOJ) decided in June not to defend the law and instead argued in a court brief that some of its consumer provisions—including protections for people with pre-existing conditions—are unconstitutional.

The DOJ in its brief on the case “cited three provisions that [it] thinks should be thrown out if the court agrees. One is the prohibition on insurance companies turning you down based on your health status, one is the community rating requirements so that insurance companies can’t you charge you more based on health status, gender, occupation, anything. And third is [the requirement that] insurance cannot impose pre-existing condition exclusion periods on a policy,” explained Karen Pollitz, senior fellow for health reform and private insurance at the Kaiser Family Foundation, in an interview with Rewire.News.

While the DOJ brief didn’t argue for the elimination of the essential health benefits—ten categories of care health plans in the individual and small group markets are required to cover thanks to the ACA including “pregnancy, maternity, and newborn care”—removing the community rating requirements could result in women being charged more for insurance coverage. Eliminating the ban on denials based on health status could also result in pregnant people having coverage withheld in the first place.

Tillis’ measure would ensure that insurance companies couldn’t deny coverage for people with pre-existing conditions, but would allow those companies to turn around and deny coverage for any treatments that person may need for their pre-existing condition, as the HuffPost reported. It also doesn’t address the potential loss of basic coverage requirements known as essential health benefits, which could be in jeopardy should the GOP state attorneys general get their way in court. This has already led Sen. Susan Collins (R-ME) to oppose the bill.

According to advocates, those essential health benefits are just as important as coverage for pre-existing conditions for anyone who can become pregnant. “If you lose the whole set of consumer protections, including those essential health benefits, just adding [that] you can’t be denied because of pre-existing conditions doesn’t really help,” said Kelli Garcia, director of Reproductive Justice Initiatives at the National Women’s Law Center (NWLC), in an interview with Rewire.News. “If the Texas lawsuit prevails, anyone who is pregnant or thinking about getting pregnant could be in the position of being denied or not being able to purchase maternal benefits on the individual market.”

That’s because by arguing against the constitutionality of the entire health care law, Republicans are essentially saying “all of it should be thrown out,” Pollitz explained. “So that’s the insurance protections, the subsidies, the Medicaid expansion, all of it.” 

According to Pollitz, it’s up to the courts what stays and what goes from the ACA, noting that the judge deciding the case could choose to follow one of the three angles, or come up with their own decision. Oral arguments are set to be heard in the case on September 10 by federal Judge Reed O’Connor, a George W. Bush appointee who has already made conservative-leaning decisions regarding the Obama-era school guidance for trans students, the ACA’s birth control coverage benefit, and anti-discrimination protections for trans patients.

Numerous major medical groups have signed onto amicus briefs opposing the GOP’s state-led lawsuit, including the American Medical Association, American Academy of Pediatrics, American Cancer Society, American Association for Retired People (AARP), and American Hospital Association.

Having the ACA thrown out entirely, or just having portions of it eliminated could bring pregnant people and anyone who can become pregnant back to the days before the ACA’s reforms were enacted. “Before the ACA, people who were trying to purchase insurance on the individual markets often couldn’t get insurance if they had any kind of pre-existing condition. We know of people being denied coverage because they were pregnant, because they might become pregnant,” Garcia said. “Losing the set of core protections really makes it hard and impossible for some people to be able to purchase the health insurance that they need.”

The lawsuit isn’t likely to be settled anytime soon because the suit is likely to be appealed and could end up at the U.S. Supreme Court. “For people who are pregnant or trying to get pregnant now, it’s probably not going to be a big deal,” Pollitz said. “But for people who are planning on trying to become pregnant in the next few years, this lawsuit could have a major effect on their coverage if they’re purchasing insurance on the individual market or get insurance through smaller employers.”

Republicans seem to be turning to the courts to enact their agenda after their failed attempts to repeal the ACA last year. And with Judge Brett Kavanaugh’s U.S. Supreme Court nomination hearings looming next week, everything seems to be coming to a head. “If you are a woman, if you’re over 50, if you’re on Medicaid, or if you have a pre-existing condition, the Republican lawsuit in Texas and the next Supreme Court justice will determine whether you will continue to have health care,” said Leslie Dach, chairperson of Protect Our Care in a statement.