Q&A: How would Supreme Court nominee rule on health care issues?
The Senate Judiciary Committee is expected to vote on Amy Coney Barrett’s nomination to the Supreme Court tomorrow, Oct. 22.
Health experts told Healio Primary Care that they are concerned with her possible ascension from the 7th U.S. Circuit Court of Appeals to the United States’ highest court in fewer than 2 months.
“I’m concerned about her judicial views [and] that she would, in essence, be a vote to overturn Roe v. Wade, the Affordable Care Act and other issues around human rights,” Georges C. Benjamin, MD, executive director of the American Public Health Association, said in an interview.
He also said Barrett should have undergone a more thorough vetting process.
“I wish that they would spend the time to really, really understand what she's done in the past, who she is, and then make an informed decision about whether or not she was the right person for the court,” he said.
Healio Primary Care also spoke with policy expert Simon F. Haeder, PhD, MPA, assistant professor of public policy in the School of Public Policy at Penn State University, and legal expert Sharona Hoffman, JD, LLM, SJD, co-director of the Law-Medicine Center at the Case Western Reserve University School of Law, about how Barrett might rule on key health-related issues if she is appointed to the Supreme Court.
Q: How do you think Barrett would rule on women’s health issues?
Haeder: We’re probably going to see some movement on Roe vs. Wade over the next few years. Given the little that she has said about it, I would think that the most likely outcome down the line would be more restrictions on what qualifies as a legal abortion and also probably more devolution to the states. And so, as a result, here will likely be more patchwork of laws depending on which state you live in.
Hoffman: Barrett has twice joined dissents in opinions where the court ruled against abortion restrictions, but she has also joined dissents in favor of abortion restrictions.
In one case, the Seventh Circuit Court voted to block an Indiana law that required parental notification for minors seeking abortions. But Barrett joined a dissent in favor of the law.
Another case was about an Indiana law that would have banned abortions on the basis of race, sex or Down syndrome diagnosis. It would have also required that fetal remains be buried or cremated. A lower court struck that down. The state of Indiana appealed, but only the fetal remains portion. The 7th Circuit Court declined to rehear the case, but Barrett joined a dissent that thought the case should be reheard. She also stated that even though only the burial of fetal remains was at issue in this case, she thought the law restricting abortions on the basis of race, sex or Down syndrome should go into effect.
Barrett has also said that she does not think Roe v. Wade would be overturned. But she also has said that she is open to reversing Supreme Court precedent, if she thinks the other decisions were unconstitutional.
Q: How do you think she would approach the Affordable Care Act?
Haeder: If you look at her writings, you can almost 100% say that she will hold the individual mandate as unconstitutional, because she disagreed vehemently with Chief Justice John Roberts’ 2012 justification on the constitutionality of that mandate.
I think it is a done deal that the individual mandate will be declared unconstitutional. That’s out the door. What remains uncertain is what a majority ruling against the constitutionality of that mandate means. That's a little bit of a wild card. One can make the argument that when Congress zeroed out the mandate in 2017, it could have undone more of the ACA but it chose not to. One can also make the strong legal argument that if the individual mandate is struck down, the rest of the law should stand. Congress has used the ACA in its COVID-19 response — the CARES Act and Families First Coronavirus Response Act — which could be a reason why the ACA should stand, even if the individual mandate falls. One could also argue that we have basically undone the individual mandate by zeroing out the penalty payment. The ACA is still very much intact, which could be another argument why the ACA should still stand.
Hoffman: Though Barrett does not have any court decisions on the Affordable Care Act, she wrote an article when she was a professor that was critical of Chief Justice Roberts’ opinion that upheld the Affordable Care Act on the basis that the penalties were a permissible tax. She also had signed a petition in 2012 against the Affordable Care Act and she was particularly upset about the employer mandate to provide birth control.
Q: Is there anything else you want to add?
Haeder: There has been movement on the Supreme Court recently to undo the rulemaking and regulations coming out of the federal government. This had the potential to severely limit the rulemaking powers of federal agencies.
A lot of what we experienced through the ACA came through the regulatory powers of HHS, the Treasury Department and the Labor Department. If a ruling comes down that limits what Congress can delegate and the powers of departments and federal agencies, that severely restricts what we get out of the federal government.