Ginsburg Death Could Be Final Blow For ACA

The flag-draped casket of Justice Ruth Bader Ginsburg lies in state in the U.S. Capitol on Friday, Sept. 25, 2020. Ginsburg died at the age of 87 on Sept. 18 and is the first women to lie in state at the Capitol. (Erin Schaff/The New York Times via AP, Pool)

PLUS: Barrett could be Ginsburg’s polar opposite on court |

Sep 24, 2020 |

Kaiser Health News – The death of Supreme Court Justice Ruth Bader Ginsburg — and the insistence of President Donald Trump and the GOP-led Senate to fill that vacancy this year — could have major implications for health care.

The high court will hear yet another case challenging the constitutionality of the Affordable Care Act the week after the November election, and a long list of cases involving women’s reproductive rights, including both abortion and birth control, are working their way through lower federal courts.

Meanwhile, scandals at the Department of Health and Human Services continue to surface, such as the case of a media spokesperson for the National Institutes of Health who criticized his boss’s handling of the pandemic via a conservative website.

And the Centers for Disease Control and Prevention continues to struggle with its credibility, after posting and then taking down another set of guidelines, this one concerning whether the COVID-19 virus is spread through aerosol particles.

This week’s panelists are Julie Rovner of Kaiser Health News, Anna Edney of Bloomberg News, Kimberly Leonard of Business Insider and Mary Ellen McIntire of CQ Roll Call.

Among the takeaways:

  • The Supreme Court’s upcoming ACA case was brought by Republican state officials seeking to invalidate the law based Congress’ elimination of the penalty for not having insurance, a provision that the court once used to uphold the law because it was considered part of Congress’ right to impose taxes.
  • Many legal experts believe that even if the high court were to decide that the loss of the penalty invalidates the individual mandate to get insurance, other parts of the law should be able to stand. But it’s not clear conservatives on the court will agree.
  • With so much emphasis on the ACA’s insurance marketplace, the expansion of the Medicaid program for low-income people and protections for people with preexisting conditions, many consumers don’t realize that the law touches nearly all aspects of health care, including guarantees of preventive services, insurance practices and even requirements for calorie counts on restaurant menus.
  • Ginsburg’s death could also influence efforts to undermine abortion rights. Two cases are already before the court, one involving the ability of doctors to remotely prescribe drugs that can end a pregnancy and a Mississippi ban on abortions after the 15th week of pregnancy.
  • As the nation marks more than 200,000 deaths from the coronavirus, the “What the Health?” panel looks at problems in the U.S. effort to fight COVID-19, including flip-flops on the need for masks, inconsistent messaging from different parts of government and the politicization of science.
  • The Centers for Disease Control and Prevention’s decision to remove guidance on the coronavirus’s ability to spread through the air created more concerns about the politicization of the federal government’s scientific studies. The controversy over the agency’s work is a stark change from the past, when the CDC was considered among the least politicized parts of the government.
  • It may take years after these coronavirus controversies for the CDC to restore its credibility with the public, no matter who is elected president.
  • Trump has touted his efforts to lower prescription drug prices, and last week The New York Times reported that the administration tried unsuccessfully to get drugmakers to send a $100 gift card to all seniors to help cover the costs of their medicines. The companies objected because, among other reasons, they were worried the move could be seen as an effort to help the Trump campaign.

Judge Amy Coney Barrett speaks after President Donald Trump announced her as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

Barrett could be Ginsburg’s polar opposite on Supreme Court

Sep 27, 2020

WASHINGTON (AP) — Amy Coney Barrett paid homage to Justice Ruth Bader Ginsburg in her White House speech Saturday as a shatterer of glass ceilings.

She said she would be mindful of the woman whose place she would take on the Supreme Court.

She even commented that her children think their father is the better cook, much as Ginsburg used to talk about her husband’s prowess in the kitchen.

But the replacement of the liberal icon Ginsburg, the second woman to serve on the high court, by Barrett, who would be the fifth, would represent the most dramatic ideological change on the Supreme Court in nearly 30 years and cement conservative dominance of the court for years to come.

Barrett, a judge on the federal appeals court based in Chicago, made clear in her Rose Garden address that she looks to conservative Justice Antonin Scalia, for whom she once worked, and not Ginsburg, on matters of law.

“His judicial philosophy is mine, too. Judges must apply the law as written. Judges are not policy makers,” Barrett said. She was referring to their common method of interpreting laws and the Constitution based on what they were understood to mean when they were written.

Ginsburg, who died this month at age 87, and Scalia were dear friends, but they were on opposite sides of the most divisive issues of the day.

Barrett’s conservative judicial record, her writings and speeches suggest that she too would be Ginsburg’s polar opposite on a range of issues that include abortion and guns.

Barrett has cast votes suggesting she would uphold state abortion restrictions that Ginsburg found violated the Constitution. Barrett also favors a more expansive interpretation of gun rights.

Ginsburg believed deeply that the Constitution protects a woman’s right to an abortion. She was a firm opponent of a broad reading of the constitutional right to “keep and bear arms.”

The differences don’t stop there. Barrett has been critical of Chief Justice John Roberts’ opinion upholding the Affordable Care Act, which is again facing a constitutional challenge at the Supreme Court. Ginsburg was one of five votes that saved the law on two prior occasions.

If Barrett is confirmed before the Nov. 3 election, she would get a chance to weigh in on the latest lawsuit to overturn Obamacare, which is set for arguments a week later.

The contrast between Ginsburg and Barrett most resembles the differences between Justice Thurgood Marshall and the man who replaced him in 1991, Justice Clarence Thomas.

Marshall was part of the majority in the 1973 Roe v. Wade decision that declared a nationwide right to abortion. In his first year on the court, Thomas joined a dissenting opinion arguing that Roe should be overturned.

Marshall was a firm supporter of affirmative action programs in education and a fervent opponent of the death penalty. Thomas holds opposing views on both issues.

The backgrounds of Barrett and Ginsburg also are very different. Barrett is a Catholic from New Orleans. The Brooklyn-born Ginsburg was Jewish. Barrett had the chance to serve as a Supreme Court clerk. Ginsburg was able to secure a clerkship with a lower-court judge only after the intervention of a law school professor.

But they both taught at law schools and became appeals court judges in their mid- to late-40s. The both focused on procedural and technical legal issues in their scholarship.

The debate over Barrett’s confirmation already is raging, with one focus on gun rights.

Ginsburg was not part of the majority in the Supreme Court’s two major gun rights decisions in 2008 and 2010. But the court had been reluctant to take on big new cases involving gun restrictions.

Barrett’s ascension to the Supreme Court could give gun rights advocates the vote they need to bring the issue back to the court in the near future.

Both her supporters and detractors have pointed to her 2019 dissent in which she argued that federal and Wisconsin laws prohibiting someone convicted of a serious crime from owning a gun should not necessarily apply if the conviction was for a nonviolent crime.

The two judges in the majority agreed with Trump administration arguments that the defendant, Rickey Kanter, could not own a gun. Barrett wrote that “while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data that disarming Kanter substantially advances that interest.”

She said that her colleagues were treating the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Barrett quoted from a 2010 opinion by Justice Samuel Alito that extended gun rights, but the phrase also has been used more recently by Justice Clarence Thomas and other conservatives to complain that the Supreme Court has shied away from recognizing gun rights.

Hannah Shearer, litigation director of the pro-gun control Giffords Law Center, said that the National Rifle Association backed Barrett’s nomination to the appeals court. The dissenting opinion, Shearer said, showed “it didn’t take long for the NRA bet on Judge Barrett to pay off.”

Conservative commentator Ed Whelan, also a onetime Scalia law clerk, praised the opinion for its “masterful application” of the originalist method of interpretation that Scalia favored to show that Kanter should not be barred from owning a gun.

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