U.S. Supreme Court

Ginsburg's death could doom health care law, cement environmental rollbacks, imperil right to abortion

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Environmental regulations, the right to abortion and the Affordable Care Act are all in danger if President Donald Trump’s next nominee to the U.S. Supreme Court is confirmed.

Those are among the implications of a 6-3 conservative majority on the Supreme Court, according to Cass R. Sunstein, a professor at Harvard Law School who wrote an op-ed for the Boston Globe.

Sunstein pointed to these likely changes:

• A Supreme Court decision holding that the Environmental Protection Agency has the power to regulate greenhouse gases could be overruled with a new justice on the high court, according to Sunstein and Michael Gerrard, a professor at Columbia Law School who spoke with the Washington Post. The Washington Post identified the decision as Massachusetts v. EPA. The only remaining justice in the majority in that case is Justice Stephen G. Breyer. At the very least, Sunstein said, the Supreme Court would likely restrict EPA authority to control air and water pollution.

• The Roe v. Wade decision establishing a right to abortion would probably be overruled. “Indeed, some members of the court would likely argue that the Constitution forbids states from allowing abortion,” Sunstein said. Even before Ginsburg’s death, abortion rights were in doubt, Bloomberg Law reports. Chief Justice John G. Roberts Jr. provided a fifth vote in June to strike down a Louisiana law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals, but his opinion hinted that he might support other restrictions, according to Bloomberg and the San Francisco Chronicle. And cases in the pipeline could provide new opportunities to restrict abortion, Politico reports. They include a pending case on restrictions on telemedicine abortions during the COVID-19 pandemic and challenges to state restrictions on a common abortion procedure performed in the second trimester.

• The Affordable Care Act will probably be struck down. The Supreme Court will hear arguments this term in the case challenging the constitutionality of the mandate requiring Americans to carry health insurance. The 5th U.S. Circuit Court of Appeals at New Orleans ruled in December 2019 that the mandate is no longer constitutional after Congress lowered the tax penalty to zero for failure to carry insurance. The U.S. Department of Justice is arguing that the entire law should be struck down. Among other things, the law bars insurers from denying coverage to people with preexisting conditions, bars insurers from charging more money because of a person’s risk profile, allows children to have coverage through their parents’ policies until age 26, guarantees certain “essential benefits,” and expands Medicaid.

• The Supreme Court has upheld race-conscious college admissions programs, although it has been skeptical of such programs. “A newly constituted court would probably say: No racial preferences, ever,” Sunstein said.

• Regulations might be in serious jeopardy if the Supreme Court revives the nondelegation doctrine, which prohibits Congress from granting a lot of discretion to regulators. The doctrine could be used to strike down provisions of the Occupational Safety and Health Act and the Clean Air Act.

• Independent agencies could be “in severe trouble,” including the Federal Reserve Board, the Federal Communications Commission and the Nuclear Regulatory Commission. Five members of the Supreme Court have already expressed unease with independent agencies, and a sixth conservative on the court could put independent agencies “under the president’s thumb,” Sunstein said.

• Commercial and other corporate speech could be given the same First Amendment protections as political speech.

• Standing decisions could restrict court access when people complain that government officials have violated the law.

• Disparate impact claims in discrimination cases could be restricted in a way that requires intentional discrimination or a clear discriminatory line.

“All this is just the tip of the iceberg,” Sunstein wrote. “With a new Trump appointee, the Second Amendment, now understood to create an individual right to own guns, could be read expansively, and more gun control laws would probably be struck down. Congress’ powers would almost certainly be limited (including its power to enact laws like the Affordable Care Act and the Voting Rights Act). Property rights would be strengthened (and might be invoked, for example, to strike down some applications of the Endangered Species Act).

“Whatever your views, the Supreme Court is at a very rare crossroads. It’s important to be clear about what’s at stake.”

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