October 27, 2020

Amy Coney Barrett is now on the Supreme Court. What could that mean for health care?

Daily Briefing

    The Senate on Monday voted 52-48 to confirm Judge Amy Coney Barrett to the Supreme Court, and Barrett was sworn into office late Monday night. Legal experts say Barrett's confirmation to the Court could affect pending cases on some major health care issues, including the Affordable Care Act (ACA). Here's what you need to know.

    Here's Amy Coney Barrett's record on key health care issues

    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.

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

    Legal experts say that Barrett's confirmation to the Supreme Court shifts the Court further conservative, with six justices appointed by Republican presidents and three appointed by Democratic presidents. In addition, experts say that 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 ACA's constitutionality, as well as some the Court could consider in the coming years, such as cases regarding abortion.

    Where Barrett stands on two major health care issues

    1. ACA

    Arguably the most significant health care case currently before the Supreme Court is a lawsuit challenging the ACA's constitutionality, which 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 Nov. 10.

    Barrett has repeatedly called into question the ACA's constitutionality. 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.

    However, Barrett during a moot-court exercise held at William & Mary Law School that focused on 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.

    In addition, during a series of hearings held by the Senate Judiciary Committee to consider Barrett's nomination to the Supreme Court, Barrett said she wouldn't comment on hypotheticals regarding how she might rule, but 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. Barrett also 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 was confirmed to the Court.

    At one point during the hearings, Barrett said, "I'm not here on a mission to destroy the [ACA]." Further, when lawmakers pressed Barrett on 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, she said, "The presumption is always in favor of severability." Barrett added, "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."

    And when asked whether judges should try to maintain an 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."

    2. Abortion

    Another major health care issue that experts expect the Supreme Court will soon address, and where Barrett's 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, 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 has ruled in favor of restrictions on access to abortion care in two cases. 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.

    During the Senate Judiciary Committee's hearings on Barrett's nomination to the Supreme Court, Barrett reiterated that she would not bring any personal agenda to the Court, and that 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."

    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.

    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.

    However, Barrett "later declined to characterize the Roe v. Wade decision that legalized abortion as a 'super-precedent' that must not be overturned," the Associated Press reports. 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."

    But 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 (Mascaro et al., Associated Press, 10/13; Axios, 10/26; Cohrs, Modern Healthcare, 10/26).

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