During senate confirmation hearings for Judge Amy Coney Barrett, Democrats painted a dire picture of what the newly confirmed Supreme Court justice could mean for American’s’ health care.
“Health care coverage for millions of Americans is at stake with this nomination,” said California Sen. Dianne Feinstein, the ranking member of the Judiciary Committee.
If Republicans succeed in confirming Barrett, “it will result in millions of people losing access to health care at the worst possible time in the middle of a pandemic, added Sen. Kamala Harris, D-Calif., the Democratic vice presidential nominee.
But is Justice Barrett really a threat to American’s’ health care?
California Sen. Dianne Feinstein
False. Completely make believe.
The charge that Judge Barrett will take away health care is a scare tactic, plain and simple.
Here’s where it originates: On November 10, one week after Election Day, the high court is set to hear oral arguments in the case California v. Texas. The lawsuit challenges the constitutionality of the Obama-era health law.
At the crux of the case is Texas’s contention that the individual mandate, which requires individuals to purchase health insurance, is unconstitutional. Texas argues that because Congress zeroed out the penalty for failing to purchase insurance in the Tax Cuts and Jobs Act of 2017, the mandate can no longer be sustained as an exercise of the Taxing Power.
Texas has a good argument. But one justice is not likely to change the outcome in California v. Texas. Five justices previously upheld the Affordable Care Act only by construing the individual mandate’s penalty to be a “tax.” Chief Justice Roberts wrote that the essential feature of a tax is that it raises revenue. By zeroing out the penalty, Congress eliminated the “tax,” and Roberts is unlikely to uphold the mandate in such circumstances. If so, one vote will not make a difference.
Even if the Court finds the individual mandate to be unconstitutional, it will likely sever that provision from the rest of the ACA, leaving pre-existing conditions coverage (and the myriad other policy changes in the ACA) in place. While the Trump Administration is asking the Court to strike down the entire statute, that inquiry turns on congressional intent. Given the way Congress has amended the statute (making the mandate unenforceable while leaving the rest of the statute in place), it is likely the Court will not strike down the entire statute.
More generally, if there are constitutional problems with the law, it is because of changes that Congress made. It is Congress’s job to pass laws that pass constitutional muster. It is not up to the Court to rewrite statutes, but to simply say when statutory laws do or do not comport with our constitution.