September 28, 2020

President Trump on Saturday announced that he is nominating U.S. Circuit Court Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court.

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Trump in 2017 appointed Barrett, 48, to serve on the 7th U.S. Circuit Court of Appeals in Chicago. Before joining the federal circuit court, Barrett was a law professor at her alma mater, Notre Dame Law School, and worked in private practice. She also had served as a clerk for the late Supreme Court Justice Antonin Scalia and Judge Laurence Silberman of the D.C. Circuit Court of Appeals.

If Barrett is confirmed to serve on the Supreme Court, the Court could shift further conservative, with six justices appointed by Republican presidents and three appointed by Democratic presidents. Adding another conservative justice to the Supreme Court could tip the scales on some particularly hot-button and far-reaching health care issues currently before the Court, as well as some the Court could consider in the coming years.

Some of Barrett's law review articles and rulings during her tenure on the 7th U.S. Circuit Court of Appeals shed light on the positions she could take on some of those health care cases if she is confirmed to the Supreme Court. Here's where she stands.

Where Barrett stands on two major health care issues

1. Affordable Care Act

Arguably the most significant health care case currently before the Supreme Court is a lawsuit challenging the Affordable Care Act's (ACA) constitutionality, which seeks to strike down the health reform law's individual mandate penalty, and by extension the entire lawThe Supreme Court is scheduled to hear oral arguments in the case on November 10—one week after the presidential election.

Barrett has repeatedly called into question the ACA's constitutionality, Inside Health Policy reports.

For instance, in 2017, before Barrett joined the federal circuit court, Barrett wrote a law review article criticizing the Supreme Court's 2012 ruling upholding the ACA's individual mandate as a tax. She took aim at Supreme Court Chief Justice John Roberts, who served as a swing vote that ultimately upheld the law.

"Roberts pushed the [ACA] beyond its plausible meaning to save the statute," she wrote. "He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power."

In addition, Barrett has lauded the late Supreme Court Justice Antonin Scalia's dissenting opinion in King v. Burwell, a case in which the Court upheld the ACA's subsidies as constitutional.

Given the latest challenge is focused on the ACA's individual mandate penalty and that Barret has challenged the legal principal of deferring to past precedents, many legal experts expect that Barrett would support striking down the ACA in the case challenging the law's constitutionality that is currently before the Court.

2. Abortion rights

Another major health care issue that experts expect the Supreme Court will soon address, and where Barrett's potential confirmation to the Court could play a significant role, is abortion.

Currently, the Court is scheduled to hear a case regarding state-imposed restrictions on abortion-inducing medications, and many other cases regarding state-imposed abortion restrictions are working their way toward the Supreme Court. Adding another conservative justice to the Supreme Court could make it more likely that the Court would uphold those restrictions and potentially overturn its 1973 Roe v. Wade decision.

During confirmation hearings for Barrett's appointment to the 7th U.S. Circuit Court of Appeals, Barrett—who in one court opinion wrote that abortion is "always immoral," according to a White House document—said she would not impose her personal views on her rulings regarding law. She also said that, as a judge on the appeals court, she would follow Supreme Court precedent on abortion rights.

Barrett has ruled in favor of restrictions on access to abortion care in two cases, CBS News reports. In Box v. Planned Parenthood of Indiana and Kentucky Inc., Barrett joined the dissenting opinion to let stand an Indiana law that would have required physicians to notify the parents of minors seeking abortions.

In addition, Barrett dissented to a majority ruling in Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc. and argued for a rehearing of an Indiana law that regulated fetal remains from abortion procedures, as well as a separate law that banned abortions sought for reasons related to disability, life-threatening conditions, race, or sex. The majority ruling struck down that ban, claiming that the law violated Roe v. Wade.

Mary Ziegler, a law professor at Florida State University, who specializes in reproductive and family law, said, "We'd expect [Barrett to support rulings] to roll back abortion rights, and quite possibly vote to overturn" Roe v. Wade.

What's next?

During an interview on CBS News' "Face the Nation" on Sunday, White House Chief of Staff Mark Meadows said he expects the Senate will follow a "pretty aggressive" timeline to consider Barrett's nomination.

The Senate Judiciary Committee on Oct. 12 is scheduled to begin its hearing on Barrett's nomination, The Hill reports. That could set up the Senate to hold a vote on Barrett's nomination before the general election on Nov. 3. If Barrett is confirmed before the election, her confirmation would set a record for being the closest to a presidential election, according to The Hill.

As Senate Republicans are moving quickly to try to confirm Barrett before Election Day, Senate Democrats are saying they will seek to block Barrett's confirmation—but they only have a few procedural tools they can use to block the process, Politico reports.

In a letter sent to Senate Democrats on Saturday, Senate Minority Leader Chuck Schumer laid out a plan for how Senate Democrats could try to oppose Barrett's confirmation to the Court. He wrote that "the best way" to block Barrett’s confirmation is to press for "a bipartisan majority that will refuse to vote on a Supreme Court nominee before the election." Schumer added, "This will not happen on its own. It requires public pressure on Senate Republicans. Health care remains the best way to keep the pressure up."

According to a new, national poll of likely voters conducted last week by the New York Times and Siena College, 41% of respondents said they think Trump should pick the new Supreme Court justice, and 56% said they think the winner of the upcoming presidential election should choose the new justice (Lee/Norwood, PBS NewsHour, 9/26; Smith, CBS News, 9/26; Politico Magazine, 9/26; Liptack, New York Times, 9/28; Cohen, Inside Health Policy, 9/26 [subscription required]; Quinn, "Face the Nation," CBS News, 9/27; Everett, Politico, 9/27; Carney, The Hill, 9/26; Martin/Burns, New York Times, 9/27; Totenberg/Montanaro, NPR, 9/24).

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