While Trump rushes to install a new Supreme Court justice before the election, the health care coverage of millions of Americans is on the line.
One week after Election Day, the Supreme Court will hear arguments in a case challenging the constitutionality of Obamacare — and with Justice Ruth Bader Ginsburg's death on Friday, the fate of the Affordable Care Act is at stake.
Donald Trump is hastily working overtime to install a new Supreme Court justice in the weeks before the election, and some of Trump's leading contenders for the spot, such as Amy Coney Barrett, have openly expressed hostility toward Obamacare.
In a 2017 paper, Barrett discussed her opposition to the Supreme Court's decision to uphold the ACA. She has also publicly disagreed with contraceptives being covered under Obamacare, signing a 2015 statement of protest calling it an attack on religious liberty.
Another potential pick, Barbara Lagoa, a federal judge on the Court of Appeals for the 11th Circuit, has close ties with the Federalist Society, which has long been connected to Obamacare opposition.
Alison Jones Rushing, a judge on the U.S. Court of Appeals for the 4th Circuit also shortlisted by Trump, began her career as an intern for the anti-LGBTQ group Alliance Defending Freedom.
The challenge to the ACA began in February 2018, when a group of 20 states, represented by two Republican governors and 18 Republican attorneys general, sued the federal government to strike down the Affordable Care Act.
Two self-employed individuals from Texas joined the lawsuit in April 2018, claiming that the ACA required them to purchase health care coverage they would not ordinarily buy.
In December 2019, the U.S. Court of Appeals for the 5th Circuit found the individual mandate to be unconstitutional. The federal government has asked the Supreme Court only to strike down any provisions found to be individually harmful to the plaintiff, and to leave intact the rest of the ACA, sending the case back to lower courts to determine which provisions apply.
"Ginsburg's death is the nightmare scenario for the Affordable Care Act," University of Michigan law professor Nicholas Bagley told the Washington Post. "If the suit had a trivial chance of success yesterday, it has a new lease on life."
Colin Seeberger, a health care spokesperson for the Center for American Progress, echoed Bagley's concerns in an interview with the American Independent Foundation.
"A lot of (people) are asking themselves, 'How could (Donald Trump's) mismanagement of the pandemic get any worse?'" said Seeberger. "I think the answer to that question is suing to take health care away from 23 million people."
He noted that legal experts across the ideological spectrum have called the lawsuit is absurd on the merits, but that the 5th Circuit's ruling "puts those ... assumptions under a microscope."
"We don't know what could happen," said Seeberger, "especially if Donald Trump is able to install another rubber stamp for his agenda on the Supreme Court."
Ginsburg's death is significant in that, historically, Chief Justice John Roberts has often sided with the Supreme Court's more liberal wing in previous ACA-related legislation, noted Seeberger.
"With Ginsburg's departure, that puts at risk the court fracturing in a tied vote, 4-4, which would sustain the ruling from the most conservative circuit court in America, that being the 5th Circuit," Seeberger said.
Wendell Potter, president of the Center for Health and Democracy, a nonprofit advocating for health care reform, said Ginsburg's death certainly adds more uncertainty to the future of the ACA.
"There are various scenarios as to what could happen after (oral arguments on Nov. 10), but it clearly puts the law in its entirety in jeopardy," Potter said.
If a new Supreme Court justice is confirmed before Nov. 10, it would mean only three Democratic appointees would remain on the Supreme Court, he added — diminishing the chances of the ACA surviving.
He said the best-case scenario would be if Justice Roberts or Justice Brett Kavanaugh voted to preserve the ACA, ruling that the mandates deemed unconstitutional were severable from the ACA as a whole.
With the the ACA gone, insurance companies could once again base premiums on health status, gender, and other factors, effectively doing away with protection for preexisting conditions. The Medicaid expansion could also go away.
"There could be great harm to many millions of Americans if the law is declared entirely unconstitutional," Potter said.
Dr. Rob Davidson, executive director of the Committee to Protect Medicare, said Ginsburg was a steadfast supporter of the constitutionality of the ACA.
"If ... her replacement is someone who who finds the ACA ... to be unconstitutional, I think that is a massive crisis in health care," Davidson said.
With tens of millions losing insurance, particularly during a pandemic, it could be disastrous if so-called COVID long-haulers suffering catastrophic health repercussions were priced out of obtaining health insurance, noted Davidson.
"I don't think it can be overstated the calamity this would create," he said. "With (Ginsburg's) passing and with an uncertainty about what comes next on the court," there are a lot of nervous people.
With outcomes uncertain after Ginsburg's death, the health coverage of tens of millions hangs in the balance.
Published with permission of The American Independent Foundation.