In her opening statement before the Senate Judiciary Committee last week, Judge Amy Coney Barrett, President Trump’s nominee to the Supreme Court, opined that courts are not policymakers.
This should not be surprising — after all, she has also said that the courts’ obligation is not to decide what legislators meant in the words used to write laws, only to seek out their clarity. Barrett also criticized Supreme Court Chief Justice John Roberts’ majority opinion in a 2012 case upholding the Affordable Care Act (ACA), saying that he failed to follow the clear language of the statute when he decided that the fine imposed under the law for not purchasing health insurance was a “tax” allowed under Congress’ taxing authority and not a penalty disallowed by the Commerce Clause.
In fact, Trump is before the Supreme Court right now, with a case being argued before the justices on Nov. 10 arguing that all of Obamacare is unconstitutional. Pundits have rightfully conjectured that he chose Barrett to do his bidding and vote to strike down the law. As Barrett’s confirmation hearing began last week, Trump tweeted:
“We will have Healthcare which is FAR BETTER than ObamaCare, at a FAR LOWER COST – big premium REDUCTION, PEOPLE WITH PRE EXISTING CONDITIONS WILL BE PROTECTED AT AN EVEN HIGHER LEVEL THAN NOW. HIGHLY UNPOPULAR AND UNFAIR INDIVIDUAL MANDATE ALREADY TERMINATED. YOU’RE WELCOME!”
He has delivered such a message throughout his presidency, in this year alone starting with his State of the Union address, declaring support for Americans with pre-existing conditions and promising every so often that he will be introducing a spanking new healthcare plan to replace the ACA. Nothing has come forth, nor will it. It’s pure bluster and deceit.
Trump’s Last Chance — Possibly — to Destroy the ACA
But a struggle now comes to bear between Barrett’s views on what courts are limited in doing, and Trump wanting her to be his messenger. Trump knows this may be his last chance to destroy Obama’s most prizeworthy legislative achievement, one that has survived 70 attempts by Republicans in Congress to kill it. Indeed, Democrats are characterizing Barrett’s nomination as an attack on Americans’ right to healthcare.
Barrett told committee members that her prior published views disagreeing with the Supreme Court’s two decisions upholding Obamacare (in another case in 2015, the Supreme Court also found the ACA constitutional) have no bearing on her thinking, because the case before the court in November deals with a different issue: whether the individual mandate, if it’s unconstitutional, can be easily severed from the rest of the 974-page law. That reasoning is questionable because before the court can address severability, it must first decide whether the mandate is constitutional.
She concurs that severing an unconstitutional provision from the rest of a statute is always a judge’s “presumption” and stressed, “I am not here on a mission to destroy the Affordable Care Act. I’m here to apply the law and adhere to the rule of law.” She also gave no commitments to the White House on how she would rule. (A more complete analysis of the options for what the Supreme Court may do with Barrett on the bench is covered here.)
Despite Barrett’s protestations to the contrary, it’s unclear how unbiased she might be if she does get on the high court — remember that Trump chose her. A more fundamental question lurks: regardless of how cases are decided, is it ethical to take away a law that has become a legislative embodiment of what many now consider to be their lifeline — their right — to healthcare?
The History of the Right to Healthcare
Back in 2008 while Obama was on the campaign trail running against the late Sen. John McCain (R-Ariz.), he called healthcare a right — not a privilege or a responsibility. That position has become the description du jour this election cycle by many running for office, but they were not the first. Various forms for providing healthcare besides the ACA have been floated since, from a Medicare-for-All system, to reducing the age to become Medicare-eligible, to amending ACA with a public option, the latter supported by Biden. Opponents of government-run healthcare rail against government interference in their lives and call such systems “socialism,” even as they hold tightly to their Medicare cards. And consider who paid for Trump’s recent COVID-19 hospital and medical care at Walter Reed; it surely wasn’t a private insurer.
The idea of healthcare as a right has been around for decades, tracing its roots back to FDR in 1943 when he crafted his proposed “Second Bill of Rights.” As more fully explained by authors Jean Carmalt and Sarah Zaidi, FDR declared “freedom from want” to be four essential liberties for human security, including “the right to adequate medical care and the opportunity to achieve and enjoy good health.” Carmalt and Zaidi wrote, “The right to health was subsequently enshrined in the Universal Declaration of Human Rights, a 1948 United Nations document.” We can even go back to the Declaration of Independence for our inalienable rights to life, liberty, and the pursuit of happiness as words connoting an ability to achieve, maintain, and regain our health.
Of course, there is no “right” to healthcare in the Constitution. Instead, it is considered a moral imperative, a human right — at least, that’s how every other industrialized country views it except for the U.S., where it’s considered a profit-making opportunity. True, other facets of life might also be considered “rights” — equal treatment for LGBTQ persons, fair housing, civil rights, and the right to vote. And while each of those is surely a noble cause, healthcare is the only one that affects every one of us from birth to death (including the “right to die” for those terminally ill with a painful disease).
Ethical Questions to Ponder
The judiciary committee expects to approve Barrett’s nomination along party lines later this week, and full Senate approval is expected soon thereafter. In the meantime, her nomination has become a symbol for assaulting the ACA, a law that’s a prime example of the right to healthcare.
This assault on the healthcare law raises many ethical questions. Is it ethical, for example, to decide a seminal law in a way that allows destruction of a moral imperative that millions of Americans have counted on for a decade to preserve and protect health? That includes those enrolled in its Medicaid expansion programs, children who are now allowed to remain on their parents’ policies until age 26, and anyone benefitting from the law’s ban on annual or lifetime coverage caps. Not to mention the more than 8 million people infected with COVID-19 who will benefit from the ACA’s ban on insurer discrimination against people with preexisting conditions.
The justices will have to decide the ACA case using analyses within a legal framework and employing various legal doctrines, notably severability. But another dilemma, also of some ethical proportion, awaits their particular analysis: if they find the entire act unconstitutional, there is currently nothing with which to replace it, nor is a replacement likely to appear any time soon. The court may have to decide the case, but it can’t simply throw Obamacare under the bus even as the justices know their newest member was chosen through a process that some are calling a sham. Barrett’s nomination has proceeded at warp speed while an election is ongoing, with millions of votes for the next president already cast.
Not since the days of Abraham Lincoln — in which a vacancy occurred 27 days before a presidential election — has a justice been chosen in such haste and with utter disregard for what the people want. (Lincoln, unlike Trump, waited until immediately after the election to nominate a replacement — both because the Senate wasn’t in session when the vacancy occurred, and because he could use the opening to his advantage during the campaign.) Even Barrett’s colleagues at the University of Notre Dame, in an open letter, are calling on her to put the country ahead of the rush to get her confirmed.
Whether she likes it or not, Amy Coney Barrett has become the poster child for whether or not the ACA will remain the sine qua non of healthcare as a right for all.
Miles J. Zaremski, JD, has been a healthcare attorney and writer for 47 years. He has written and lectured extensively in the healthcare law space, both nationally and abroad. He has written books and also contributed essays to the Huffington Post and to CNN’s Michael Smerconish site. He is past president of the American College of Legal Medicine and for 5 years served as chair of the American Bar Association’s Standing Committee on Medical Professional Liability.
Source: MedicalNewsToday.com
