Implications of Justice Barrett’s Confirmation on Employment Law Rulings, ACA Case

November 9, 2020

David Weisenfeld, JD, legal editor at XpertHR, previews how employment law rulings may be affected by the Senate's recent confirmation of Justice Amy Coney Barrett to the Supreme Court.

David Weisenfeld, JD, Legal Editor at XpertHR, previews how employment law rulings may be affected by the Senate's recent confirmation of Justice Amy Coney Barrett to the Supreme Court, as well as the influence that the upcoming case on the Affordable Care Act (ACA) will have on the future of US health insurance.

Transcript

AJMC®: Hello, I'm Matthew Gavidia. Today on the MJH Life Sciences’ Medical World News, The American Journal of Managed Care® is pleased to welcome back David Weisenfeld, JD, Legal Editor at XpertHR who also hosts an award-winning podcast series for his organization on a myriad of employer-related content.

David, great to have you back on, can you just introduce yourself and tell us a little bit more about your work?

Weisenfeld: Sure, Matthew, and thanks for having me back! It's great to be here. So, as you noted, I host all of our podcasts, and as part of that, I frequently cover a wide range of employment issues, including those coming up at the Supreme Court. For instance, I was in the courtroom last year for the big LGBT rights case, when the Supreme Court expanded the rights of individuals to have protections at work from discrimination. And we'll be covering the ACA case coming up as well. So, that's certainly a timely one for you to have me on.

AJMC®: As you just alluded to, delving into the Senate’s recent confirmation of Judge Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg, can you speak on the immediate impact this has for employers in regards to workplace disputes and employment law rulings?

Weisenfeld: Sure. So, Justice Ginsburg, as many of your listeners of course know, was an absolute trailblazer for the rights of employees, and she frequently made herself heard in employment disputes at the Supreme Court. And even before she was on the court, was noted for arguing before the justices on employment law cases.

She was really a driving force behind the events that led to the Lilly Ledbetter Fair Pay Act, which was President Obama's first signature achievement. And that was a direct result of her dissent in that case, which extended the rights of female employees to fair pay.

Justice Barrett has only been a judge for 3 years on the Appellate Court. So, certainly her experience is quite a bit more limited, and it really remains to be seen where she's going to line up in employment law cases. I mean, certainly, she’s had a couple of rulings that have gone the way of employers—she's also had 1 or 2 that's gone the way of employees. We really have to see, but certainly, I don't anticipate that she's going to be where Justice Ginsburg was. So, there is definitely an impact there.

AJMC®: There are significant questions looming on the fate of the Affordable Care Act, or ACA, whose Supreme Court case arguments on its constitutionality will be on November 10. What key aspects of this case should be monitored by employers and health care purchasers?

Weisenfeld: Oh, there are a host of aspects to follow with this one, Matthew, for sure. Just to set the scene, 18 states led by Texas are challenging the ACA’s essential coverage provision, which many people of course know as the individual mandate, and a lower court judge had found that mandate unconstitutional.

Really, the key aspect to follow here, and certainly that is, of course, one of them, but what people are really interested to see is, let's say the Supreme Court agrees with Justice Barrett on the court that it is unconstitutional. Well, this is certainly a big part of the ACA, but it's not the entire part. So, will the court sever this and just say, well, this 1 discrete piece is unconstitutional, but the rest of the law stands, or not even get into that? Or are they going to take this as an opportunity to strike down the entire act? And that's really what everybody's going to be looking for here.

AJMC®: As she has been vocal in the past on her perception of the ACA as unconstitutional, how will Justice Barrett’s confirmation as replacement of Justice Ginsberg impact these arguments?

Weisenfeld: Well, it certainly will have an impact because the ACA back in 2012, when it first came before the Supreme Court, was upheld by the narrowest of margins—5 to 4, in an opinion authored by Chief Justice Roberts. And many of your viewers may remember that was quite a surprise at the time. Most people thought Chief Justice Roberts was going to come out the other way, but be that as it may, 1 of those 5 votes was Justice Ginsburg, and of course, she's no longer here.

Justice Barrett, in light of her writings, certainly has called out the ACA and been critical of it, but again, she hasn't really addressed whether she would necessarily strike down the entire act or at least take this case as the opportunity to do so. So, that remains to be seen, but certainly looking at it from the outside, and of course, we would really need to see the arguments to kind of see where things line up, but looking at it from the outside, one would think that she's going to be less hospitable to the arguments of those in favor of the ACA than Justice Ginsburg would have been.

AJMC®: What influence will the upcoming ACA case have on the future of health insurance in the United States?

Weisenfeld: There's no doubt it's going to have a big impact. I mean, many people have speculated and predicted that more than 22 million Americans potentially could lose their health insurance coverage if the Supreme Court were to take the dramatic step of invalidating the entire law. So, certainly, that's on the table.

Of course, we heard a lot during the campaign about preexisting conditions. And if the Supreme Court were to take that step, people would not be protected. So, the stakes are really enormous here. There's no overstating how big this case is, and I suspect, not just for employment law, but really for all aspects of law that this will be the number 1 case in terms of importance on the courts schedule this year.

I just wanted to mention, a group of health insurance plans have argued that striking down the ACA amid what we’re of course all going through right now, a global health pandemic, could potentially have catastrophic implications. And the other thing that I would mention is while people talked about how important this case is, Matthew, and certainly there's no downplaying that, had the Democrats taken control of the Senate with this election, certainly, the overall impact might have been slightly less, because even if the Supreme Court were to strike it down then there would have been nothing to stop a Democratic Senate and House from passing a new law in short order as a replacement. So, there would be a huge impact, but it would not be long lasting.

My guess would be it is going to be quite difficult to come up with a replacement quickly if the Supreme Court were to strike down this law. So, I think people will be watching very closely. I do still think even though Justice Barrett has replaced Justice Ginsburg that there is the possibility of at least some slight middle ground where this is scaled back, but it's not entirely thrown out; but of course, that remains to be seen and we still have probably several months after the case is argued until the court hands down its ultimate decision.

AJMC®: To learn more, visit our website at ajmc.com. I’m Matthew Gavidia, thanks for joining us!