October 15, 2020

The 2 biggest health care questions senators asked Judge Amy Coney Barrett

Daily Briefing

    The Senate Judiciary Committee on Wednesday wrapped up three days of hearings on U.S. Circuit Court Judge Amy Coney Barrett's nomination to the Supreme Court, and two health care issues emerged as sticking points for lawmakers.

    Today at 3 p.m. ET: Get 'Up to Date' on the Supreme Court confirmation hearings

    Barrett's background

    President 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.

    Last month, Trump nominated Barret to replace the late Justice Ruth Bader Ginsburg on the Supreme Court.

    Legal experts have said 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, such as a case challenging the Affordable Care Act's (ACA) constitutionality, as well as some the Court could consider in the coming years, such as cases regarding abortion.

    Health care issues emerge as sticking points during committee hearings on Barrett's nomination

    Those issues—the ACA and abortion—quickly emerged as sticking points in some lawmakers' questions for Barrett and comments on her nomination.

    How would Barrett rule on the ACA?

    Lawmakers' biggest focus related to health care during the hearings centered on how Barrett might rule on a case currently before the Supreme Court that challenges the ACA's constitutionality. The suit specifically seeks to strike down the health reform law's individual mandate penalty, and, by extension, the entire law. The Supreme Court is scheduled to hear oral arguments in the case on November 10.

    Before Trump nominated Barrett for the Supreme Court, she had repeatedly questioned the ACA's constitutionality. For instance, in 2017, before Barrett joined the federal circuit court, she wrote a law review article criticizing the Supreme Court's 2012 ruling upholding the ACA's individual mandate as a tax. 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. Further, Barrett during a moot-court exercise held at William & Mary Law School that used the case currently before the Court ruled that the ACA's individual mandate was unconstitutional—but she also ruled that the rest of the law could be severed from, or could stand without, the individual mandate.

    During the hearings this week, in response to questions about how she might rule on the ACA lawsuit before the Supreme Court, Barrett said she wouldn't comment on hypotheticals regarding how she might rule. However, she did point out that there were differences between the past court cases that challenged the ACA on which she has commented and the case currently before the Court.

    In addition, Barrett said her ruling in the moot-court exercise involving the case currently before the Supreme Court shouldn't be taken as indication of how she might actually rule in the case if she is confirmed to the Court. And at one point, Barrett said, "I'm not here on a mission to destroy the [ACA]."

    Despite Barrett's comments, Sen. Mike Crapo (R-Idaho) said Barrett's ruling in the moot-court exercise offers "kind of an answer, frankly, to a lot of those who are raising this specter that you're going to take the whole [ACA] away from everyone because of this very narrow case."

    Barrett clarified, however, that the moot case "wasn't designed to reflect [her] actual views." She added, "So to the extent that people think I might have been signaling to [President Trump] or anyone else what my views on the [ACA] are, they couldn't have taken any signal from that."

    On Wednesday, senators probed Barrett further on the issue, asking her about the legal concept of severability—whether a law overall can stand if one part of it is ruled unconstitutional—in relation to the ACA lawsuit.

    "The presumption is always in favor of severability," Barrett said, adding, "I think the doctrine of severability serves a valuable function of trying not to undo your work when you wouldn't want a court to undo your work."

    Barrett continued, "Severability strives to look at a statute as a whole and say, would Congress have considered this provision so vital that in the Jenga game, that pulling it out, Congress wouldn't want the statute anymore?"

    Further, when asked whether judges should try to maintain the overall law when one part is overturned, Barrett said that was "true," adding that judges should never try "to undermine the policy that Congress enacted."

    How would Barrett rule on cases regarding abortion?

    The other health care issue that got a lot of attention during the hearings pertained to how Barrett might rule on cases challenging government restrictions on abortion access.

    Currently, the Supreme Court is scheduled to hear a case regarding state restrictions on abortion-inducing medications, and many other cases regarding state abortion restrictions are working their way toward the 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, some legal experts have said.

    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 reiterated those statements during this week's hearings. She said she would not bring any personal agenda to the Court, and she would decide any cases she considers "as they come."

    "Judges can't just wake up one day and say I have an agenda—I like guns, I hate guns, I like abortion, I hate abortion—and walk in like a royal queen and impose their will on the world," Barrett said during the hearings. "It's not the law of Amy. It's the law of the American people."

    According to the Associated Press, some Democratic lawmakers pressed Barrett to give more specific answers to how she might rule on cases regarding abortion—and, in particular, whether she would uphold the Court's Roe v. Wade decision if a case challenging the precedents set by that decision might arise. Sen. Dianne Feinstein (D-Calif.), the ranking member of the Committee, at one point said, "It's distressing not to get a good answer."

    Barrett repeated that she doesn't have an agenda when it comes to such cases. "I have an agenda to stick to the rule of law and decide cases as they come," she said.

    But, as the AP reports, Barrett "later declined to characterize the Roe v. Wade decision that legalized abortion as a 'super-precedent' that must not be overturned"—a view that conflicts with some Democrats' opinions.

    Barrett said, "I'm answering a lot of questions about Roe, which I think indicates Roe does not fall in that [super-precedent] category." She continued, "Roe is not a super precedent because calls for its overruling have never ceased."

    Although Barrett said she may not believe the Roe decision is a super precedent, she noted that "[s]cholars across the spectrum say that doesn't mean that Roe should be overruled." It means that, "descriptively … it is not a case that everyone has accepted," she said.

    What's next?

    The Senate Judiciary Committee is slated to hold a final day of hearings on Barrett's nomination, and to hold an initial committee vote on her nomination, on Thursday. It's likely that the Committee will refer Barrett's nomination to the full Senate.

    Republican leaders in the Senate have said they intend to move quickly to consider Barrett's nomination. Republicans hold a 53-47 majority in the Senate. According to the AP, "[b]arring a dramatic development, Republicans appear to have the votes to confirm Barrett" and are likely to do so by the end of this month (Baker, Axios, 10/14; Mascaro et al., Associated Press, 10/14; Axelrod, The Hill, 10/13; Hurley et al., Reuters, 10/13; Min Kim/Marimow, Washington Post, 10/13; Cohrs, Modern Healthcare, 10/12; Desiderio/Levine, Politico, 10/14; Cohrs, Modern Healthcare, 10/14).

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