Barrett confirmation stokes Democrats’ fears over ObamaCare

Judge Amy Coney Barrett’s expected confirmation to the Supreme Court on Monday has reignited Democrats’ fear of a 6-3 conservative majority court siding with GOP challengers in an upcoming lawsuit targeting ObamaCare. 

The high court is set to hear oral arguments in the case next month, with a ruling likely sometime in June. Court watchers say a number of outcomes are possible, with the most extreme scenario involving the court striking down the entire law.

Invalidating the Affordable Care Act (ACA) would cause some 21 million Americans to lose health coverage, perhaps while the country is still in the grips of the coronavirus pandemic. It would also remove protections for 133 million people in the U.S. with preexisting conditions, and permit insurers to deny coverage or charge higher premiums based on a person’s health status.

The political ground has shifted dramatically since the justices agreed in March to take up the challenge to ObamaCare. The country has gone from enjoying historically low jobless numbers and fewer than two dozen coronavirus cases to seeing millions of newly unemployed Americans lose job-based health coverage and more than 222,000 die from COVID-19. 

The makeup of the court itself has also changed in the wake of liberal Justice Ruth Bader Ginsburg’s death, with President Trump putting forward a conservative replacement whose entrance to the court is all but certain to shift it further to the right.

With just over a week until Election Day, Democratic voters rank health care as their top issue at the ballot box, and 8 in 10 registered voters say health care is important to their vote choice, according to a recent Gallup poll.

Democrats put health care at the forefront of their successful bid to retake the House in the 2018 midterm elections and are employing a similar strategy this year as they push to win back the White House and Senate. 

On Thursday, Democratic members of the Senate Judiciary Committee boycotted the vote to advance Barrett’s Supreme Court nomination and instead held a rally on the Capitol steps to voice their opposition, emphasizing what they view as the threat to ObamaCare posed by her confirmation.

“We all know that Amy Barrett presents a clear and present danger to the Affordable Care Act,” Sen. Mazie Hirono (D-Hawaii) told the crowd. “She’s already let it be known that she thinks Chief Justice Roberts made a mistake when he upheld the law, which means that if she had been sitting on that court, she would have struck down the Affordable Care Act then.”

Top Republicans have sent mixed messages about how Barrett’s seating on the court might affect the GOP-led lawsuit against the Obama-era law. The Trump administration has backed the case, which will be argued before the court on Nov. 10.

During Barrett’s confirmation hearings earlier this month, Senate Republicans went to great lengths to downplay the likelihood that her addition to the court would seal the law’s fate.

“The left is also suggesting Judge Barrett’s confirmation would be the demise of the Affordable Care Act and the protection for preexisting conditions. That’s outrageous,” Sen. Chuck Grassley (R-Iowa) said during the hearings before the Senate Judiciary Committee. “As a mother of seven, Judge Barrett clearly understands the importance of health care.” 

But Trump sharply undercut that message in an interview with “60 Minutes” that aired Sunday, saying he would like to see the Supreme Court bring about an end to ObamaCare.

“I hope that they end it,” Trump told CBS News’s Lesley Stahl. “It will be so good if they end it because we will come up with a plan.” 

For many Americans, Trump’s promise of an ObamaCare replacement plan rings hollow. 

Trump and his GOP allies in Congress have long vowed to replace the ACA with a Republican health plan that offers the same protections for those with preexisting conditions. 

But despite Republicans having a decade to develop a plan — and controlling both chambers of Congress during Trump’s first two years in office — they have been unable to pass a replacement. 

Democrats, for their part, have sought to paint Barrett as an existential threat to ObamaCare, but the legal reality may prove more complicated when the court takes up the latest ACA lawsuit next month.

The challengers, a group of more than a dozen Republican-led states, argue that Trump’s 2017 tax cuts effectively rendered a key provision of ObamaCare unconstitutional and therefore the entire health law should be struck down.

The GOP challengers note that the law’s original design depended on a requirement that most people purchase insurance and set up a tax penalty for noncompliance. But the Trump tax cuts zeroed out the penalty, which, according to the litigants, should cause the whole ObamaCare structure to collapse.

Court watchers say that even if the GOP challengers convince the justices that the health requirement provision is now illegal, they may face difficulty convincing the court to strike down the law in its entirety. Instead, the court could opt to simply remove the so-called individual mandate that makes the purchase of coverage compulsory, while preserving the rest of the law.

Still, to retain the law, the most likely scenario would involve the court’s three more liberal justices persuading two or more conservative members to join their ranks. Two previous GOP challenges to ObamaCare were rebuffed, but only by razor-thin margins, including a 5-4 vote in a 2012 case and a 6-3 decision in 2015.  

The decisive vote in the 5-4 case, National Federation of Independent Business v. Sebelius, belonged to Chief Justice John Roberts. 

Democrats have pointed to a law review article by Barrett in 2017 — in which she criticized Roberts’s reasoning — as evidence of her hostility to ObamaCare, though she has never said directly how she would rule on the issue that will be heard in the upcoming case. 

But that’s cold comfort for Democrats, their allies and a host of interest groups who have filed friend of the court briefs urging the justices to leave the law intact. 

“Invalidating provisions that have expanded access to health insurance coverage … would have a devastating impact on doctors, patients, and the American health care system in normal times,” reads a brief from the American Medical Association. 

“However, striking down the ACA at a time when the system is struggling to respond to a pandemic would be a self-inflicted wound that could take decades to heal,” it adds.