Supreme Court nominee Amy Coney Barrett’s past statements on abortion and the Affordable Care Act should cause headaches for Missouri Sen. Josh Hawley. Indications are that she would not vote to strike down Roe v. Wade but that she probably would vote to kill Obamacare, including its protection for people with preexisting conditions.
Hawley, a Republican, pledged on July 26 that he would “vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.” He would not accept their private assurances, but he would demand they produce a record showing their belief that the landmark 1973 abortion-rights decision was legally wrong when it was decided. While there are hints in Barrett’s record that she would impose some limits on abortion rights, she has not indicated an intent to overturn the Roe decision.
Speaking at Jacksonville University in 2016, Barrett said, “I don’t think … Roe’s core holding that … women have a right to an abortion, I don’t think would change.” She indicated the Supreme Court would nibble at Roe’s edges, such as “very late-term abortions” and “how many restrictions can be put on clinics.” That’s hardly the full-throated denunciation that Hawley demanded. Rather than honoring his strict pledge, he now says Barrett will have his vote. So much for political pledges.
Barrett has spoken on another issue of great interest to Missouri voters. She has criticized Chief Justice John Roberts’ opinion upholding Obamacare, claiming Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” The constitutionality of Obamacare will be argued before the Supreme Court on Nov. 10, just a week after the election.
What is at stake in that case? The Affordable Care Act prohibits insurance companies from discriminating against people with preexisting medical conditions. It provides subsidies to lower the insurance premiums of millions of Americans, allows kids to stay on their parents’ insurance until age 26, closes the doughnut hole for drugs under Medicare, and expands Medicaid coverage to millions of low-income people. All of those provisions and many more are at stake in the Supreme Court case.
There is currently a 4-4 court split on the law’s constitutionality. Four of the justices, including the two appointed by Donald Trump, Neil Gorsuch and Brett Kavanaugh, are hostile to Obamacare. The other four, including Roberts, have supported it. If Barrett is confirmed and participates in the case, she would likely tip the balance, dooming Obamacare. That is the exact result Hawley sought as Missouri’s attorney general when he helped to initiate the pending lawsuit that is now pending before the high court. During his 2018 Senate campaign, Hawley claimed he was all for protecting people with preexisting conditions. However, his lawsuit is likely to be the death of their protection.
If Trump’s justices kill the Affordable Care Act, about 20 million Americans would lose their health coverage. Everyone with a preexisting medical condition would be at the tender mercies of insurance companies as to whether they can get coverage or how much extra they would have to pay for it, and millions of low-income folks may become ineligible for Medicaid. The benefits available under insurance policies would dwindle. The entire medical system would be thrown into turmoil, and the economy with it.
Substantial effects would be felt in Missouri. In addition to depriving well over a million Missourians of protection for their preexisting conditions, 166,000 Missourians would lose their Obamacare subsidies, and the 230,000 who became eligible for Medicaid coverage as a result of this year’s Medicaid expansion vote would see their hope of medical care disappear.
Hawley created both of these problems for himself. Even though Barrett does not cross the high bar he set for his confirmation vote, she now seems to have it. And if he does vote to confirm, he would likely be voting to kill the preexisting-condition protection people have had during the last 10 years under Obamacare. The instrument that would eliminate that protection is the lawsuit Hawley filed during his attorney general days — an interesting twist of fate.
Jim Jones is a Vietnam combat veteran, former Republican Idaho attorney general and retired Idaho Supreme Court Justice.
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