September 21, 2020

What Ruth Bader Ginsburg's death means for key health care issues

Daily Briefing

    The Supreme Court on Friday announced that Justice Ruth Bader Ginsburg has died from complications related to cancer, and her passing could have significant implications for some hot-button health care issues currently before the Court—as well as issues the Court could consider in the near future.

    How Ginsburg's death could affect rulings on hot-button health care issues

    Ginsburg's death presents the opportunity for President Trump to add another conservative judge to the Supreme Court, which could affect the way the court will rule for years to come. With Ginsburg, the court had five justices appointed by Republican presidents (Chief Justice John Roberts and Associate Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) and four appointed by Democratic presidents (Ginsburg and fellow Associate Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor).

    Trump on Saturday said he plans to nominate a woman to replace Ginsburg on the Supreme Court, but it remains to be seen who his nominee will be. If Trump were to appoint a new conservative-leaning justice to replace Ginsburg, the Court could tip 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. Here are the biggest health care issues at stake.

    1. The 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 in its entirety. The Supreme Court is scheduled to hear oral arguments in the case on November 10—one week after the presidential election.

    Initially, health policy experts were largely confident that the Supreme Court with Ginsburg would uphold the ACA in the case. Under the Court's makeup, it was likely that all four Democratic-appointed justices would vote to uphold the ACA in this case along with Roberts, who served as a swing vote that ultimately upheld the ACA in the Court's 2012 ruling on the law.

    However, with Ginsburg's passing, the ACA's fate is much shakier. "It's a much more significant possibility than it was" that the ACA could be struck down, Nicholas Bagley, a law professor at the University of Michigan who worked in former President Barack Obama's administration, told Vox on Friday, after the news of Ginsburg's broke. "I'm much more worried about the ACA than I was two hours ago," he said.

    As the Supreme Court currently stands, its eight justices could hear and decide on the latest case challenging the health reform law or the justices could choose to delay oral arguments in the case until a new justice is confirmed.

    If the justices choose to proceed with the case before a new member of the Court is confirmed, experts say it's likely that the Court's three Democratic-appointed justices and Roberts would vote to uphold the ACA and the Court's four Republican-appointed justices would vote to strike down the law, resulting in a tie. In the instance of a tie, an appeals court panel's decision striking down the individual mandate would remain in place. However, the panel did not consider the question of severability, meaning that question would go back to the lower court for consideration. So, as Vox puts it, "the litigation would, in a certain sense, start over, and the same case would likely end up back before the Supreme Court in another year or two."

    If Trump nominates and the Senate confirms a new justice before the case's oral arguments begin in November, the Court likely would proceed with the case and it could be possible that the Court, with a new conservative-leaning justice, would reach a 5-4 ruling striking down the ACA entirely. However, as Vox notes, "nobody [can be] certain how the incoming justice will rule."

    But it's worth noting that some legal experts think the Supreme Court could vote to largely uphold the ACA even if they do strike down the law's individual mandate. As Vox explains, the Supreme Court typically decides on questions regarding severability by considering Congress' intent. And Vox notes that, when Congress approved the 2017 tax reform law, lawmakers authorized zeroing out the tax penalty while leaving the rest of the ACA's provisions in place. Therefore, it seems clear that Congress intended to allow the ACA's other provisions to stand without the individual mandate penalty, legal experts told Vox.

    Another possibility is the Court could vote to strike down the individual mandate and many of the ACA's insurance-related protections but allow the rest of the law to stand, Politico reports. As Politico explains, "The [ACA] statute explicitly links the individual tax penalty to the law's key coverage protections, including those for pre-existing conditions. The Court could find that private insurers are no longer bound to these mandates if Americans aren't somehow compelled to buy coverage."

    Katie Keith, a health law professor at Georgetown University, told Politico, "I think those provisions–the protections for people with pre-existing conditions–are most at risk in this scenario. … That'll be the issue to watch for during oral argument."

    2. Coronavirus measures

    Ginsburg's death also could affect the way the Supreme Court rules on cases regarding measures intended to mitigate the novel coronavirus's spread.

    As the Wall Street Journal reports, the Supreme Court over the past several months "has seen a stream of emergency applications seeking to overturn or reinstate lower-court orders involving public-health measures to combat the coronavirus pandemic, election procedures for statewide ballots, and frequently both. That volume is expected to increase as November draws near."

    So far, the Court has issued decisions on many of those emergency applications without hearing full arguments in the cases or having full records from lower courts. In many of the decisions, the Supreme Court's justices have split, with Democratic-appointed justices voting to uphold government-imposed measures intended to mitigate America's coronavirus epidemic and Republican-appointed justices voting against them. According to the Journal, "Roberts often has cast the deciding vote, usually to uphold policy decisions of government officials—whichever way they cut—over orders from federal judges." But with the Court's makeup now changed, its conservative-leaning majority could prevail in striking down those measures.

    3. Abortion rights

    Ginsburg's passing also presents a situation in which the Supreme Court could overturn the high court's 1973 Roe v. Wade decision, which guarantees a woman's right to access abortion care, or uphold smaller restrictions on abortion care.

    Currently, the Court is scheduled to hear a case regarding state-imposed restrictions on access to 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.

    There also are some cases that challenge the Roe decision working their way toward the Supreme Court. While the high court typically defers to precedents set by previous Supreme Court rulings, the Court over the past few years has veered from that practice, issuing a few new rulings that conflict with previous precedents. A conservative-leaning Supreme Court could do the same if it considers a case that challenges the Roe decision, though some experts think that scenario is unlikely, Politico reports.

    What to watch: Who will replace Ginsburg—and when?

    While it may seem as if the biggest question we face right now is who will replace Ginsburg, the bigger issue at hand is when Ginsburg will be replaced.

    Trump has said he plans to announce his pick to replace Ginsburg at the end of this week, and he's called on the Senate to hold a confirmation vote on his nominee quickly.

    Senate Majority Leader Mitch McConnell seems eager to oblige. This past weekend, McConnell said he will seek to swiftly confirm Trump's nominee.

    However, McConnell's desire to move quickly on confirming Trump's Supreme Court nominee during an election year contradicts his stance in 2016. Following former Justice Antonin Scalia's death in February 2016, McConnell refused to bring up a vote on Merrick Garland, Obama's nominee to replace Scalia, saying it was too near the upcoming presidential election to confirm a new justice.

    Some policymakers and stakeholders say the Senate should wait until after the presidential election to move on confirming a Supreme Court nominee, and until after former Vice President Joe Biden is inaugurated if he wins the election. So far, two Republican senators—Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska)—have said they oppose moving forward with a confirmation vote before Election Day. Politico reports that Republicans need all but three Republican votes to confirm a nominee if all Democrats vote against the confirmation, meaning opposition from just two more Republicans would derail plans to confirm a new justice before the presidential election.

    For his part, Biden on Sunday called for Senators to wait on confirming a new Supreme Court justice until after the presidential election, noting, "There's so much at stake … [t]he right to health care, clean air, clean water, the environment, equal pay for equal work, the rights of voters, immigrants, women, workers" (Gerstein, Politico, 9/19; SCOTUS website, accessed 9/21; Scott, Vox, 9/18; Luthi, Politico, 9/19; Baker, Axios, 9/21; Bravin, Wall Street Journal, 9/19; Rovner, Kaiser Health News, 9/21; McCammon, NPR, 9/19; Desiderio/McCaskill, Politico, 9/20; Pager, Bloomberg, 9/20; Baker, New York Times, 9/21; Jackson, USA Today, 9/19).

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