How a Supreme Court Vacancy Can Shape the Fate of the ACA, Reproductive Rights

September 22, 2020

The passing of Supreme Court Justice Ruth Bader Ginsburg has thrown an already contentious election season into greater limbo, as her death and potential replacement could result in substantial changes to the future of the Affordable Care Act and women’s reproductive rights.

The passing of Supreme Court Justice Ruth Bader Ginsburg on September 18 has thrown an already contentious election season into greater limbo, as her death and potential replacement could result in substantial changes to the future of the Affordable Care Act (ACA, also called Obamacare) and women’s reproductive rights.

Ginsburg, who passed away at age 87 from pancreatic cancer complications, was known for her career-long efforts promoting gender equality and social justice. She was the second women to serve on the nation’s highest court.

“[Ruth Bader Ginsburg] was a magnificent judge and a wonderful person—a brilliant lawyer with a caring heart, common sense, fierce devotion to fairness and equality, and boundless courage in the face of her own adversity,” said former President Bill Clinton in a statement. Clinton, who appointed Ginsburg in 1993, commended the former justice on her opinions advancing gender equality, marriage equality, the rights of individuals with disabilities, and the rights of immigrants.

Throughout her tenure, Ginsburg consistently voted to uphold the tenets of the ACA and protect reproductive rights, including access to birth control and the right of a woman to have an abortion, stances largely opposed by the Trump administration and conservative justices and senators alike.

The ACA Case

In June, the Trump administration along with several Republican attorneys general filed briefs calling on the Supreme Court to repeal the ACA.

In 2017, President Donald Trump eliminated the individual mandate—the heart of the ACA that requires everyone to have health coverage and lays the groundwork for a risk pool that is more balanced between the sick and the healthy, the young and the old. Subsequently, in 2019, the Fifth Circuit of the United States Court of Appeals ruled the mandate unconstitutional.

Because the individual mandate was ruled unconstitutional, proponents believe the entire law should be repealed. “Congress deliberately designed the ACA and its goal of expanding healthcare coverage around the individual mandate,” the brief reads. “Without the mandate, the guaranteed-issue and community-rating provisions not only malfunction but result in the opposite of what Congress intended.” The filing urges the Supreme Court to affirm the statutory text deeming the individual mandate essential.

Arguments on the case are scheduled for the week after the 2020 November election. Without Justice Ginsburg on the bench, the case may end up in a 4-4 tie (assuming Chief Justice John Roberts votes to uphold the law), meaning the lower-court ruling would stand. However, the decision would not be binding on other courts outside the Fifth Circuit, Kaiser Health News (KHN) reports. If Republicans succeed in their effort to replace Justice Ginsburg before arguments begin, as many have vowed to do, a 5-4 majority vote may ensue, effectively striking down the law.

As the Republican attorneys general are the plaintiffs in the case, a newly elected Democratic president could not drop the lawsuit. But by reinstating the penalty for failure to have insurance, a Democratic Congress and president could theoretically save the ACA.

Analyses from the Center on Budget Policy Priorities estimate repealing the ACA will cause 20 million individuals to lose health insurance coverage. That number is predicted to increase should the United States enter a recession and due to the compounding effects of the coronavirus disease 2019 (COVID-19) pandemic.

Repeal of the ACA would also worsen racial disparities in health care, a widespread crisis brought into stark relief by the pandemic. A report from the Urban Institute determined that without the added stress of a pandemic, repealing the ACA would result in a loss of coverage for 1 in 10 Black individuals and 1 in 10 Hispanic individuals compared with 1 in 16 White individuals. “The result is that about 1 in 5 Black people and nearly 1 in 3 Hispanic people would be uninsured" if the act is repealed.

Should the act be repealed, women would lose guaranteed access to birth control at no out-of-pocket cost and Medicaid patients would lose enhanced prescription drug coverage.

When it comes to COVID-19, researchers argue repealing the ACA would not only limit coverage but cut also funding for the CDC and public health efforts, end the requirement that all insurers cover services like vaccines without cost sharing, and allow insurers to rescind coverage if someone develops health problems associated with an undisclosed preexisting condition.

Legal scholars across the political spectrum have stated they find the case’s central argument unconvincing. A separate brief filed in the case, written by a group of conservative and liberal law professors, states, “If courts invalidate an entire law merely because Congress eliminates or revises one part, as happened here, that may well inhibit necessary reform of federal legislation in the future by turning it into an ‘all or nothing’ proposition.”

Ultimately, the fate of the case may hang on whether a new justice deems the ACA settled law.

Uncertainty on Reproductive Rights

In addition to the possibility of women losing birth control coverage should the ACA be repealed, a vacancy on the Supreme Court creates an opportunity for the erosion or complete reversal of other landmark cases instrumental in ensuring female reproductive rights.

Over the decades, Justice Ginsburg cemented her stance on women’s issues, repeatedly opting to side with pro-choice abortion advocates. When the Supreme Court upheld a federal ban on a specific abortion procedure in Gonzales v Carhart in 2007, Justice Ginsburg dissented, stating the ruling “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists….for the first time since Roe v Wade, the Court blesses a prohibition with no exception safeguarding a woman’s health.”

Ginsburg’s perennial argument came down to whether women are guaranteed equal status under the law. “Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation,’” she wrote in the dissent. “Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’”

In a similar ruling in 2016, she argued that when safe and legal options for abortion are limited, women may resort to more dangerous practices conducted by unlicensed practitioners, posing a greater risk to their health and safety.

In response to the news of Ginsburg’s passing, Planned Parenthood President Alexis McGill Johnson stated, “The fate of our rights, our freedoms, our health care, our bodies, our lives, and our country depend on what happens over the coming months,” with regard to a new appointee.

Although Chief Justice Roberts sided with liberal justices in June 2020 when he invalidated a Louisiana law that would have closed most of the state’s abortion clinics, he made it clear the vote was not one in favor of abortion rights and that he was bound by recent precedent, according to KHN. Should the president appoint a justice who is against abortion, the conservative majority on the bench may jeopardize the 1973 ruling of Roe v Wade, which guarantees a woman’s right to an abortion.

However, if Roe v Wade stands, a conservative appointee to the top court may also pave the way for more restrictive actions at the state level. One case already before the court includes the Trump administration’s request for justices to overturn a federal judge’s decision that lifted restrictions on telemedicine abortions during the pandemic, Politico reports. The court may also soon consider bans on a common second-trimester abortion procedure that at least 10 states have sought to outlaw.

Anti-abortion advocates see the vacancy as an opportunity to push forward a pro-life agenda, scrapping the legal protections in place for those who perform abortions and making the procedure illegal in the country once again.

“Around the country, you’re seeing what we on the pro-life side call favorable developments,” said Steve Aden, the chief legal officer at Americans United for Life. Federal courts, filled with conservative appointees from President Trump, are showing signs of more “deference to state judgement” when evaluating abortion restrictions, Aden said.

Nominating a Justice

President Trump plans to name a female Supreme Court nominee to replace Justice Ginsburg by the week’s end—a move contested by those arguing a replacement should not be instated until after the 2020 presidential election. The appointee would be President Trump’s third to the Supreme Court in less than 4 years. Once an appointee is named, the Senate must vote to confirm the pick.

Senate Majority Leader Mitch McConnell plans to hold a vote before the election, a decision contrary to the wishes of the late justice. “My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg said, according to a statement from her granddaughter.

In 2016, McConnell drew criticism from Democrats for refusing to hold a vote to confirm then-President Barack Obama’s nominee after the death of conservative Justice Antonin Scalia. Although the nomination was made the February before the election, McConnell argued justices should not be approved in an election year. However, McConnell is now arguing that because the Senate and the White House are both Republican-led, unlike in 2016, the nomination and vote should proceed, the BBC reports.

“There is absolutely no reason for senators who support the president’s nominee and who are satisfied with her credentials to reject her on the basis of timing,” said Kay Coles James, president of The Heritage Foundation, in a Fox News op-ed. “The Constitution confers the power to confirm Supreme Court nominees to the Senate, and they should base their determination on the suitability of the nominee rather than disabuse themselves of their constitutional authority.”

Reports show the president’s top contenders for the position include Barbara Lagoa, Amy Coney Barrett, and Kate Comerford Todd.