
How a Supreme Court Vacancy Can Shape the Fate of the ACA, Reproductive Rights
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
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
In 2017, President Donald Trump
Because the individual mandate was ruled unconstitutional, proponents believe the entire law should be repealed.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)
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.
Repeal of the ACA would also worsen racial disparities in health care, a widespread crisis brought into stark relief by the
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
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
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
In response to the news of Ginsburg’s passing, Planned Parenthood President Alexis McGill Johnson
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
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
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
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
“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
Reports show the president’s top contenders for the position include Barbara Lagoa, Amy Coney Barrett, and Kate Comerford Todd.
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