Republicans: Supreme Court won’t toss ObamaCare

Senate Republicans are downplaying the chances that the Supreme Court will strike down ObamaCare as Democrats seek to hammer the GOP on the issue ahead of the elections.

As Supreme Court nominee Amy Coney Barrett testifies this week before the Senate Judiciary Committee, Democrats are drilling in on a Republican-backed lawsuit seeking to strike down the Affordable Care Act (ACA) that the high court will hear one week after Election Day.

If the lawsuit succeeds, roughly 20 million people would lose health insurance, and popular protections for people with preexisting conditions would be thrown out.

But Republicans — who have spent the past decade trying to eradicate the 2010 law — are dismissing this possibility. They argue that Democrats are blowing the chances of the challenge prevailing out of proportion, noting that legal experts across the spectrum have called the lawsuit’s arguments weak.

“No one believes the Supreme Court is going to strike down the Affordable Care Act,” Senate Majority Leader Mitch McConnell (R-Ky.) said Monday night during his reelection debate with Democrat Amy McGrath.

Other Republican senators pointed to Barrett’s role as the mother of seven children.

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

Sen. Todd Young (R-Ind.), who heads the Senate GOP campaign arm, wrote in an op-ed: “As the head of a large household, Judge Barrett knows full well, and better than most of her detractors, how important medical coverage is to every American’s health.”

The Republicans’ effort to downplay a challenge to the ACA is striking given their criticism of the Supreme Court’s prior rulings on the controversial law and their legislative moves to repeal it.

But at the same time, congressional Republicans are not directly saying that they oppose the lawsuit, which would mean breaking from President Trump, whose administration is in court in support of the challenge. The lawsuit was brought by 18 Republican state attorneys general.

“Obamacare will be replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court,” Trump tweeted last month. “Would be a big WIN for the USA!”

A McConnell spokesman said he did not want to go beyond the majority leader’s comments at the debate when asked whether McConnell opposes the lawsuit.

Earlier this month, most Republicans rejected a motion to advance a bill that would protect ObamaCare from the Supreme Court challenge. Five of the six Republicans who defected are running for reelection next month.

“A vote by any Senator for Judge Amy Coney Barrett is a vote to rip away health care for millions and end protections for Americans with preexisting conditions in the middle of the COVID pandemic,” Senate Minority Leader Charles Schumer (D-N.Y.) tweeted on Tuesday.  

Many legal experts, both conservative and liberal, say the argument against the ACA is extraordinarily weak. The main vulnerability, they say, is the claim that simply because the law’s mandate for everyone to have coverage is unconstitutional, the entire rest of the law is so intertwined that it should also be struck down. To the contrary, many legal experts say it was clear when Congress acted in 2017 that it intended to repeal only the penalty for violating the mandate and to leave the entire rest of the health law standing.

“There is an infinitesimal chance that anything beyond the already inoperative individual mandate is invalidated, and this is true whether or not Judge Barrett is confirmed,” said Jonathan Adler, a law professor at Case Western Reserve University who supported prior legal challenges to the ACA but says the current one goes too far. “Democrats are making the ACA the center of their concerns because it plays well politically, not because it’s likely to be the most consequential result of a Barrett confirmation.”

At the hearing on Tuesday, Barrett declined to weigh in on the ACA case given that it is pending before the court. But speaking broadly, she told the Senate panel she is “not hostile to the ACA” or to “any statute that you pass.”

Nicholas Bagley, a law professor at the University of Michigan who supports the ACA, likewise said he thinks the lawsuit is “unlikely to succeed.”

But he added: “I think Democrats are right to worry about the small risk of a very bad outcome.”

Bagley noted that Barrett wrote a 2017 journal article criticizing Chief Justice John Roberts for upholding the ACA in an earlier challenge to the law. And the late Justice Antonin Scalia, whose legal philosophy Barrett has praised, voted to strike down the ACA in that 2012 case.

“Nobody ever said that Justice Scalia, because he had a bunch of kids, would vote to sustain the ACA,” Bagley said. “It’s really sexist.”

Michael Zona, a Grassley spokesman, said the senator pointed to Barrett’s role as a mother to show her “first hand understanding of the importance of access to affordable health care” but that he has “no way of knowing how a Justice Barrett might rule on a theoretical case before the court.”

“Sen. Grassley supports replacing Obamacare with bipartisan legislation that would protect preexisting conditions, increase access to affordable health care and lower premiums for more Americans,” he added.

That Republicans are looking to downplay the challenge to ObamaCare, though, is an illustration of the shifting politics of the law. The ACA has risen in popularity under the Trump administration and amid efforts to repeal the law in 2017. Its protections for people with preexisting conditions have become so untouchable that Republicans are straining through ads to say they support that part of the law, despite their previous votes to repeal the ACA.

Brad Woodhouse, executive director of the Pro-ACA group Protect Our Care, said Republicans are “desperate” to downplay the lawsuit given the political damage it has caused them. “They never really out and out disavow it,” he added. “They never disavow the intent behind it. It’s a little too cute by half.”

Ford O’Connell, a GOP strategist, said Democrats are hyping the lawsuit for political advantage.

“It’s clear that the Democrats are trying to use the [Barrett] hearings as a way to scare the bejeezus out of independent and minority voters,” he said.