The stability of the U.S. health insurance system is very much in play now that President Donald Trump has nominated U.S. Circuit Judge Amy Coney Barrett to fill the late Justice Ruth Bader Ginsburg’s seat on the Supreme Court.
Senate Majority Leader Mitch McConnell plans to ram her confirmation through the Senate before Election Day. Should he succeed, she may become the deciding vote in the latest challenge to the Affordable Care Act, which provides healthcare coverage for 20 million Americans. Oral arguments are scheduled for Nov. 10.
The issues in California v. Texas are fairly straightforward. In 2018 Republican attorneys general in 19 states challenged the ACA’s constitutionality, claiming elimination of the individual mandate penalty voided the entire law.
A District Court in Texas, two judges on the 5th U.S. Circuit Court of Appeals, and the administration agreed, setting the stage for the high court battle.
Precedent is on the side of the law’s defenders. In 2012, Chief Justice John Roberts joined with four liberal justices to uphold the law. The challengers in NFIB v. Sebelius claimed the entire law was invalid because Congress had no right to require people to buy health insurance. The narrow majority ruled the penalty for noncompliance was a tax and clearly permitted by the Constitution.
Even conservative pundits say the latest challenge faces an uphill battle. If the basis of the suit is reducing the tax to zero, who’s been harmed and has standing to sue? No one.
There’s also the issue of severability, a long-established precedent in constitutional law that says invalidating one part of a law doesn’t invalidate all of it. In a 2006 case, the high court, in the last decision written by Justice Sandra Day O’Connor, upheld parts of a New Hampshire teenage abortion parental notification law while invalidating restrictions on medically necessary abortions. The court should never “nullify more of a legislature’s work than is necessary,” she wrote in a unanimous decision.
But Barrett, a former Notre Dame law professor, is a strict constructionist in the mold of the late Justice Antonin Scalia, for whom she clerked over two decades ago. “A judge must apply the law as written,” she said during the Rose Garden ceremony when Trump introduced her as his nominee.
In a 2017 law review article, she endorsed Scalia’s dissenting opinion in NFIB v. Sebelius. “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote. “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.”
Roberts’ opinion may not matter after she is confirmed. There are already four conservative justices on the court. Her vote could tip the balance against the law.
Needless to say, that outcome will have disastrous consequences for tens of millions of Americans, well beyond those who will immediately lose healthcare coverage. The law’s protections—guaranteed issue for people with preexisting conditions; limits on age-related rate discrimination; nondiscrimination against women; allowing young adults to stay on their parents’ plans until age 26—all would go by the boards.
So would the financial viability of the individual insurance market, which depends on the subsidies in the law. As has been repeatedly noted, the Republicans failed to come up with a plan to replace Obamacare because its jerry-built financial construction is the Republican plan. It was written by the Heritage Foundation and road-tested by then Gov. Mitt Romney in Massachusetts.
Barrett’s views on these issues should receive a full airing during her confirmation hearing. Before the polls close on Nov. 3, voters deserve to know if the Republican Party, in the midst of an uncontrolled pandemic, intends to throw the entire healthcare industry into chaos next year.