Supreme Court Nominations

Would Barrett ax the Affordable Care Act? She has expressed some views; severability is a question mark

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Liberal groups are running ads warning that U.S. Supreme Court nominee Judge Amy Coney Barrett will vote to overturn the Affordable Care Act if she is confirmed to the Supreme Court. What are her views on the subject?

The Supreme Court has accepted a new challenge to the Obama administration’s health care law that is based on Congress’ decision in 2017 to lower the tax penalty to zero for failure to carry insurance. The case is set to be argued Nov. 10.

In previous critiques of the law, Barrett criticized the initial Supreme Court decision that upheld it and opposed a provision involving birth control, report the Washington Post, Reuters and the New York Times.

The Supreme Court had upheld the law in June 2012, holding that Congress had the authority to adopt it under its taxing power. After Congress dropped the tax penalty, the 5th U.S. Circuit Court of Appeals at Louisiana ruled that the mandate requiring individuals to carry health insurance was no longer constitutional.

The U.S. Department of Justice has argued that the elimination of the penalty requires the Supreme Court to strike down the entire Affordable Care Act.

Besides requiring individuals to carry insurance, the ACA has several protections.

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 “essential benefits” that include mental health, maternity and drug coverage; expands Medicaid; and establishes insurance exchanges to allow customers to compare and buy insurance plans.

Individuals buying insurance on the exchanges get subsidies to help pay their premiums if they earn less than $51,000 per year, according to the New York Times.

President Donald Trump has signed an executive order stating that it is U.S. policy to protect people with preexisting conditions. But the order did not explain how the policy would be carried out if his administration succeeds in overturning the entire law.

Barrett criticized the majority opinion upholding the law, written by Chief Justice John G. Roberts Jr., in a 2017 article. Roberts had written that Congress had the authority to require individuals to buy insurance—or to pay a penalty—under its taxing power.

Barrett wrote that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” If Roberts had interpreted the required payment as a penalty, Barrett wrote, “he would have had to invalidate the statute as lying beyond Congress’ commerce power.”

Barrett wrote about the ACA in a critique of a book on constitutional law by Randy Barnett, a professor at the Georgetown University Law Center.

Barnett had contended that Congress did not have the constitutional authority to enact the health law’s insurance mandate.

Barnett “vehemently objects to the idea that a commitment to judicial restraint—understood as deference to democratic majorities—can justify a judicial refusal to interpret the law as written,” Barrett wrote. “Barnett is surely right that deference to a democratic majority should not supersede a judge’s duty to apply clear text.”

Barrett also signed a petition in 2012 objecting to the health care law’s requirement to require most employer health insurance plans to include contraception coverage. The petition said an Obama administration accommodation for some objecting employers—which shifted payment for the coverage to third parties—did not go far enough.

The petition signed by Barrett said the mandate was an “assault” on employers’ “religious liberty and the rights of conscience.”

“The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception and sterilization,” the petition said.

“This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.”

The Trump administration has since expanded the exemptions to allow employers to opt out of providing contraceptive coverage based on religious or conscience objections. In a July decision, the Supreme Court ruled that the plain language of the ACA gives federal agencies the authority to create the exemptions.

In yet another opinion on the ACA, the Supreme Court ruled in June 2015 that the ACA allows subsidies for low-income people who purchase health insurance through federal exchanges.

In a 2015 radio interview, Barrett said the dissent by Justice Antonin Scalia had the better argument, according to Reuters. Scalia had argued that the majority advanced “argument after feeble argument” in an opinion made up of “interpretive jiggery-pokery.”

One unknown, should Barrett be confirmed in time to hear the latest challenge to the law, is her view on severability—whether some parts of a law can still stand if other parts are struck down. Barrett has not participated in any cases involving the concept, nor has she written about it, according to the Washington Post.

It’s possible the Supreme Court will allow parts of the health law to stand, even if it strikes down the insurance requirement. Reuters and SCOTUSblog point to a statement by Justice Brett M. Kavanaugh in a case that struck down an exception to a federal ban on robocalls while allowing the rest of the law to stand.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Kavanaugh wrote.

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